Monday, January 24, 2011

Under Act for the Relief of Sick and Disabled Seaman, health care purchase has been mandated before

Much was made last week of the post by Rick Ungar over at, pointing out that John Adams proposed in 1798, and Congress passed, a law mandating that merchant marine sailors pay a tax to support a system of government-operated marine hospitals, which Ungar likened to the ACA’s individual mandate that everyone purchase health insurance.

Fans of the health reform act have happily pointed out that this should negate the main argument of those who are against the individual mandate – that the government does not have the right to force anyone to purchase anything. Previously, comparisons had been made by those on the left to the purchase of car insurance, which you must buy in order to be in legal compliance, but, as conservatives have argued, only if you drive. By comparison, the individual mandate of the ACA requires every citizen, merely because they are citizens, to purchase health insurance. Now, it appears that Congress, with the approval of both Thomas Jefferson and John Adams had previously passed a similar mandate, making it hard to argue that the ACA is unconstitutional. But, should liberals be rubbing their hands with glee yet?

Conservatives have already tried to punch holes in Ungar’s argument, pointing out that the "Act for the Relief of Sick and Disabled Seaman" was different from the ACA because it was merely a payroll tax. In response, those on the left have responded that the seamen were paying taxes in exchange for government-run health care. As Ezra Klein, of the Washington Post, notes, “. . . it was, in essence, a regulation against a form of inactivity: You were not allowed to not do something, in this case, pay for sailor's health insurance.”

Additional responses from the right have included the point that the tax only targeted one segment of society, and that it shouldn’t be compared to the ACA, which covers every citizen. Ungar has countered that argument by asking “. . . how many classifications of the population do you believe can be mandated to do something and remain within Constitutional limits?” It would be hard to argue that it would be constitutional for only certain segments of the population, or those in certain professions, to be mandated to do something, Ungar adds.

It could also be pointed out that the sailors made the decision to become sailors, and that they always had the option to do so, making what was, effectively, a payroll tax to fund their healthcare optional, not mandatory. On the other hand, I suppose it could be argued that one could always have the option of giving up citizenship.

It is perhaps worthy of note that the purpose for instituting the Act for the Relief of Sick and Disabled Seaman was similar to the reasoning behind an October 2010 ruling by the Eastern District of Michigan in Thomas More Law Center v. President of the United States (No. 2:10-cv-11156). The Seaman’s Act was passed because, since sailors were in a dangerous profession, there was no way to know when, or to what degree, they would be badly injured and in need of health care. In Thomas More, the court pointed out that the health care market is different from other markets, in that no one can ever ensure that he or she will never need drastic medical care.

It will be interesting to see if Ungar’s column will have any effect on upcoming rulings challenging the ACA. Back in December, in Commonwealth of Virginia v. Sebelius, Judge Henry E. Hudson held that the ACA’s individual mandate is unconstitutional, stating in his opinion that “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article 1, ” adding that, “. . . an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause . . .” So, will the debate about the 1798 law show up in upcoming pleadings, one wonders?

For a comprehensive analysis of the Patient Protection and Affordable Care Act, and additional information on health reform and other developments in employee benefits, just click here.


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