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Part 2: Arguments that are worse than mine–Bad points hurt good conclusions

In this series, I attempt to resolve through my complete absence of legal powers, whether healthcare reform is constitutional. More reasonably, I try to lay out some arguments, inconsistencies, and reasoning. In Part 2 of a series that is probably mostly wrong (but very interesting!), I take a look at a historical approach that has been used to resolve this issue.

If you recall from Part 1, we started with three basic concerns with the healthcare reform bill:

1) Forcing individuals to have health insurance is unconstitutional

2) Forcing individuals to purchase a private product is unconstitutional

3) The regulation of insurance is more or less a matter for states to decide, not the federal government

I decided that the third one is really obviously not a problem and not worth exploring further. But I did not address how to resolve #1 or #2, except to say that resolving #2 should take care of #1 (more or less).

There is another approach proposed to address #1, brought to my attention by Greg, a fellow US/UK Fulbright Scholar studying in the United States, in a DailyKos link by LaurenMonica that he shared. LaurenMonica discusses an article by Paul J. O’Rourke in Open Salon called Our Founding Father’s Socialized Healthcare System. The topic of both pieces is legislation signed by John Adams entitled “For the Relief of Sick and Disabled Seamen.” (I should note that Greg says that he is not a supporter of mandates, but I will leave it to him to make his position on these articles, my arguments, and healthcare reform in the United States as a whole.)

It is a pretty straightforward act, being about a page long. So I can proudly say that I read it, unlike the current healthcare bill. The way it worked was that owners of ships were required to deduct 20 cents a month from the salaries of their sailors (a payroll tax) for payment to the federal government. The government then disbursed the money for the payment of healthcare services at the ports for sailors. This could be in government hospitals, where those existed, or in a manner decided by the President (so perhaps in a private hospital).

LaurenMonica and O’Rourke (in a later article) assert that this is proof that a federal health insurance mandate is constitutional. I share their sentiment that such a mandate is constitutional (my concern with mandates is largely operational–perhaps more on that in another post) and my sense is that most people agree. But I think this argument is a bit shaky.

These are two major fallacies on which their argument depends:

1) Having not been challenged in hundreds of years, the aforementioned act must be constitutional (a corollary is that President John Adams, a framer of the Constitution, must certainly have acted within the parameters of the Constitution he helped to design!)

2) The provision of government insurance is equivalent to a requirement of private insurance

I will begin by addressing the first fallacy. I have actually done the authors a bit of a favor in phrasing this the way I did. In fact, their argument is a little less nuanced, using the federal statute as a stand-in for constitutionality, instead of making the direct argument that its lack of challenge confirms its constitutionality. Of course, we know that the passage of a federal statute does not equate with constitutionality; otherwise, there would be no debate over the federal healthcare reform bill’s constitutionality. So with that in mind, we’ll give the authors the benefit of the doubt.

Unconstitutional acts can stay on the books and be enforced for outrageous amounts of time while remaining unconstitutional, both at the state and the federal level. This is in part because of the way that tests of constitutionality operate and in part because of the changing meaning of constitutionality as the Supreme Court itself changes.

To test an act’s constitutionality, someone must file a lawsuit. For a court to strike down a law, someone must challenge that law. As a complete layman, I don’t know the case law on this, so it might be that a challenge upheld this law, but LaurenMonica and O’Rourke do not provide this evidence. That would be the test of constitutionality.

Of course, we must recognize that interpretations of constitutionality do change over time. Separate but equal laws were held constitutional in Plessy vs. Ferguson, but subsequently struck down in Brown vs. Board of Education. It is true that our Supreme Court places high value in precedent, but it is not unheard of for the court to overturn precedent where necessary. Even if the precedent of this case’s constitutionality existed, it is conceivable that an argument could be made either from other precedent (of which I am not aware) or from first principles of the Constitution that this is a violation.

Both LaurenMonica and O’Rourke place a lot of value in the provenance of this document. As LaurenMonica writes:

I guess now President John Adams was a tyran[t] who took away Amer[i]cans’ freedom or even worse, he was a “SOCIALIST”. I wonder if the teabaggers will now scream that President John Adams didn’t know the US Constitution. After all, he “just” help[ed] writing the US Constitution, Glenn Beck or other T-Baggers are more experts of the US Constitution than John Adams was.

This is clearly a flawed argument. First of all, while I don’t think many people would claim that President Adams was a socialist, a number of contemporaries certainly did think he was a tyrant.The Alien and Sedition Acts were seen by many, including Adams’ rival and Vice President, Thomas Jefferson (who himself knew a thing or two about the Constitution), as a gross overstepping of the boundaries of federal power. Those acts, because of the politics of the sitting Supreme Court, were never challenged directly, and they expired towards the end of Adams’ presidency. But the Court has noted in subsequent opinions, and I think the historical sentiment on this is pretty resounding, that the Alien and Sedition Acts were unconstitutional.

The Alien and Sedition Acts smell of witch hunts and clearly seem like an abuse of power; this welfare of sailors business seems much more benign. Nevertheless, they arise from the same Federalist philosophy. It is a philosophy, I should say, that I agree with in broad strokes. The Alien and Sedition Acts were overstepping, but I do like central banks, civil rights, and the other gifts that the Federalist perspective has given us.

At the beginning of our union, there was a great debate over the nature of the United States. The Federalists, like Adams, wanted a strong central government, while their opponents thought that the individual states had a significant amount of sovereignty. Over the years, we have moved towards more and more central power, the watershed moment of course being the Civil War, which asserted the preeminence of the union over the states.

My suspicion is that if the courts had been stacked with anti-Federalists instead of Federalists during the Adams administration, a challenge to the sailors’ relief act could have been successful. But that is hand-waving hypotheticals. At the very least, we know that the national sentiment for states’ rights was much stronger then than it is now; striking down such an act would have had a lot better luck in the early 19th Century than the early 21st.

All this presupposes that the sort of government insurance provided by the sailors’ relief act is the same as a mandate for the purchase of private insurance. In fact, they are wildly different, and their differences underscore one of the big problems that even the left has with this bill: The subsidy of the inefficient private insurance market.

What the sailors’ relief act provides is something a lot more akin to traditional Medicare. The government charges a tax on its citizens and uses the revenue to provide for the care of the ill, by funding treatment at public and private clinics. The government here serves as the middle man between policy holders and care providers. If we accept that the government has a role in the provision of social services and a power to collect taxes, this is entirely reasonable.

The irksome thing about the healthcare bill for some is that the government becomes the intermediary between policy seekers and policy providers (insurance companies). This would be fine if the government did not then use its legislative powers to force that relationship by mandating purchase. It is this step beyond subsidy to coercion that gives some pause. It is a step that has no relevance to the sailors’ relief act or Medicare because we all agree that the federal government has the power of coercion through taxes. As you can see, these are two entirely different questions.

Now that we see that this is the wrong way to answer this question, let’s find a less wrong way to solve it. We begin that journey in Part 3 of the series, Armchair philosopher bloviates on the role of government in society, in which I show that the mandate of health insurance is reasonably within the purview of government in general. I leave it to a later part of this series to determine whether federal government has a role (not to ruin anything, but I think it does).

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