Ezra Klein resorts to fan fantasy and fiction to defend the ObamaCare mandate in what may (fingers crossed!) be its final hours.
He offers two examples of "mandates" implemented by the founding fathers. The first was a requirement that men between the ages of eighteen and forty-five equip themselves properly for deployment in the local militia. Obviously, that is not an exercise of the Commerce Clause.
The second example is a "mandate" to buy "hospital insurance" with the caveat that "mandate" means "payroll tax" and "hospital insurance" means "Federally funded and sponsored hospitals".
The current fantasy, as presented by Einer Elhauge, a professor at Harvard Law, and excerpted by Ezra:
In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...]
Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
Uh huh. Here is the text of the act. It is a payroll tax with the proceeds paid to the government (not private hospitals or insurers). The funds are to be used by the government to build and/or pay for hospitals to care for sailors. (The boat owner is responsible for all record-keeping and payments, although he is authorized to retain the amounts from his sailor's pay.)
Gosh, if Obama had wanted to fund ObamaCare with a payroll tax, would that have been Constitutional? It would have been like... like... like Medicare!
Of course, Obama had promised not to actually raise taxes on anyone earning less than $250,000, so that road was closed. And any citizen determined to avoid that payroll "mandate" could simply stop working.
It's fun that libs are dusting off their history, but they really need to find some analogous analogies.
FROM CENTURIES AGO:
Wth July, 1798.
CHAP. [94.] An act for the relief of sick and disabled seamen.
Be it enacted, Sfc. That from and after the first day of September next, the master or ownerof every ship or vessel of the United States, arriving from a foreign port into any port of theUnited States, shall, before such ship or vessel shall be admitted to an entry, render to thecollector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the saidcollector, at the rate of twenty cents per month for every seaman so employed ; which sum he ishereby authorized to retain out of the wages of such seamen.
§ 3. That it shall be the duty of the several collectors to make a quarterly return of the sumscollected by them, respectively, by virtue of this act, to the secretary of the treasury ; and thepresident of the United States is hereby authorized, out of the same, to provide for the temporaryrelief and maintenance of sick, or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the moneys collected in anyone district, shall be expended within the same...
Incredibly, the act does not run on for another two thousand pages. Five paragraphs in all, actually.