And Chief Justice Marshall’s Court would have sustained it.
Last week, Forbes “discovered” the Act for the Relief of Sick and Disabled Seamen, 1 Stat 605 (1798) (pdf). Scare quotes because, Eugene Volokh’s blog beat them to it by about eight months, but the comparative circulation being what it is, the Act, which demonstrates originalist support for the notion of “socialized medicine,” has only gained prominence now.
The Act originated what would become the first federally-managed health care system, for marine workers and longshoremen, and funded it by an employer mandate, by which ship captains would find their vessels unable to leave port, unless their employees were documented, and the exaction paid on each. The system also originated a corps of doctors and health administrators under the supervision of the President — which is to say, the Executive Branch — creating America’s first substantial health bureaucracy, and thereby, our very first “death panels.” All together, powerful proof that the Founders intended their new government to be capable of taxing and spending, under the Commerce Clause, for the care of its citizens.
Careful readers will note several points of distinction. First, the care of seamen and longshoremen falls within a narrower definition of Congress’ Commerce Clause powers than, say, health care writ large. But the modern Commerce Clause adequately supports the regulation of the insurance industry, making this, at least, a non-starter. And second, the Act contains no individual mandate, which is, after all, what all the fuss is about. But the presence of an employer mandate, approved by the very men who wrote the Constitution, shows a willingness to deploy the commerce power in a tax-like, socially coercive manner. And for the narrow goal of improving the well-being of the merchant marine, no individual mandate was needed, since a seaman only encounters his profession’s perils through his employer.
There is nothing new in today’s health care debate: neither the problems nor the solutions were beyond the imagination of the founding generation. Removing the perception of novelty that surrounds the individual mandate is half the battle, both with the public and the courts; and this Act is adequate to that challenge.