The Individual Mandate And America’s Ongoing Debate Over The Role Of Government

The battle over the individual mandate is really just nothing more than the latest round in a batter that has been ongoing for 221 years.

The conflict over the Afforable Care Act’s individual insurance mandate, which played itself out most recently in the decision issued by Judge Henry Hudson is really just the latest round in a battle that stretches back to the beginning of the Republic itself:

“We are against forcing all citizens, regardless of need, into a compulsory government program,” said one prominent critic of the new health care law. It is socialized medicine, he argued. If it stands, he said, “one of these days, you and I are going to spend our sunset years telling our children, and our children’s children, what it once was like in America when men were free.”

The health care law in question was Medicare, and the critic was Ronald Reagan. He made the leap from actor to political activist, almost 50 years ago, in part by opposing government-run health insurance for the elderly.

Today, the supposed threat to free enterprise is a law that’s broader, if less radical, than Medicare: the bill Congress passed this year to create a system of privately run health insurance for everyone. On Monday, a federal judge ruled part of the law to be unconstitutional, and the Supreme Court will probably need to settle the matter in the end.

We’ve lived through a version of this story before, and not just with Medicare. Nearly every time this country has expanded its social safety net or tried to guarantee civil rights, passionate opposition has followed.

The opposition stems from the tension between two competing traditions in the American economy. One is the laissez-faire tradition that celebrates individuality and risk-taking. The other is the progressive tradition that says people have a right to a minimum standard of living — time off from work, education and the like.

Both traditions have been crucial to creating the most prosperous economy and the largest middle class the world has ever known. Laissez-faire conservatism has helped make the United States a nation of entrepreneurs, while progressivism has helped make prosperity a mass-market phenomenon.

Yet the two traditions have never quite reconciled themselves. In particular, conservatives have often viewed any expansion of government protections as a threat to capitalism.

In many respects, it’s a debate that started more than 200 years ago around George Washington’s first cabinet table as Thomas Jefferson and Alexander Hamilton squared off in debates over the proper role of the new Federal Government. Though he was not involved int he 1787 Convention, Jefferson quickly became an advocate of what we would today call a strict constructionist, most importantly with respect to the limited power that had been granted to the Federal Government. Hamilton, on the other hand, believed in a strong and energetic central government. He believed that Congressional power was not necessarily limited to the powers expressly stated in Article I, Section 8 of the Constitution, which was an interesting change for him since he had argued along with Madison and Jay in The Federalist Papers that the Constitution created a government of strictly limited powers.

The history of the Hamiltonian-Jeffersonian debate, and the history of the early years of the Republic, tends to put the lie to the simplistic view that America prior to 1914 or 1932 was a paradise of laissez-faire government and strict adherence by the Federal Government to confines of the Constitution. In 1791, for example, President Washington proposed on Hamilton’s recommendation the creation of what ultimately became the First Bank Of The United States. Jefferson and his allies in the cabinet objected to the bill on the ground that there is no authority granted in the Constitution for Congress to charter a bank. Hamilton and his allies argued that the powers of Congress expanded beyond the mere specific grants of authority in the Constitution and included “attainment of the ends…which are not precluded by restrictions & exceptions specified in the constitution.” Washington sided with Hamilton, the Bank bill passed through Congress easily, and within the first two years of the new government’s existence the strict constructionist view of the Constitution had suffered a significant, some might say intellectually fatal, defeat.

When the re-chartering of the Bank of the United States finally made it’s way to the Supreme Court in 1819, the Court essentially adopted Hamiton’s view and utilized the Necessary and Proper Clause to expand the powers of Congress beyond those strictly set forth in Section 8:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Similarly, with respect to the Commerce Clause, which plays a central role in the debate over the individual mandate, the seeds for the massive expansion of Federal power were laid very early in America’s history. In 1824, the Supreme Court defined Congressional power under this clause as:

The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution………….0The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.

So, within thirty-five years after the first government elected under the Constitution took office, the ground work had been laid for the massive expansion of the power of Congress. All that was necessary were the right circumstances, and when the Progressive Era and Great Depression came around, those circumstances came around. Even before then, though, the Federal Government often acted outside the strict confines of the Constitution. Thomas Jefferson acquired 828,000 square miles of land from France without a specific grant of authority to do so, for  example. And much of the history of the government before the Civil War included efforts to obtain benefits for private industry in the name of economic expansion. The point is that the idea of a government that lives only with the strictly construed confines of Article I, Section 8 is something that has only really existed on paper, it has never really existed in the history of the United States.

This didn’t happen because of some vast Wilsonian conspiracy as the Glenn Becks of the world might postulate. It happened, mostly, because the American people wanted it to happen. The New Deal, the Great Society, yes even ObamaCare all passed with substantial public support, or with a demand from the public that the government do something about a problem. Concerns about Constitutional limitations rarely enter the public mind and, when they do, they’re often informed by a view of the Constitution and history that has little to do with reality. More importantly, when the public wants something arguments that the government can’t do it are rarely persuasive.  It all brings to mind this story:

At the close of the Constitutional Convention, a woman asked Benjamin Franklin what type of government the Constitution was bringing into existence. Franklin replied, “A republic, if you can keep it.”

That is really the place we find ourselves in today. We have a massive Federal Government that clearly does more than just act within the strict confines of the Constitution mostly because that’s what the American people wanted. In that sense, Alexander Hamilton has, for the moment, won the debate that started in a cabinet meeting in New York in 1789. The debate will go on, however, as it has from the beginning.

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FILED UNDER: *FEATURED, Law and the Courts, Politics 101, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Three things come to mind:

    1. Even Jefferson deviated from strict construction on numerous occasions, including perhaps the most famous example: The Louisiana Purchase.

    2. You state:

    We have a massive Federal Government that clearly does more than just act within the strict confines of the Constitution mostly because that’s what the American people wanted.

    I would restate this a bit, as there are legitimate debates (even as you note above, and from the beginning) as to what constitutes “within the strict confines of the Constitution.”

    3. Franklin wasn’t talking about what the central gov’t would or would not do, he was talking about whether the experiment in self government (to borrow a phrase from Lincoln) would, or would not, succeed.

    On can have a republic and also have a central government that does a whole lot more than even the one we currently have.

  2. Patrick T. McGuire says:

    “… mostly because that’s what the American people wanted.”

    Or because they think there is little that they can do to stop it. Obamacare is a perfect example of that. It never had the support of a majority of the population and looses support daily yet the governmnet passes it anyway and refuses to do anything about it.

    Something tells me the Tea Party is about to change all that.

  3. mannning says:

    This laissez faire lawmaking interpretaton appears to extend quite handily to provisions that a large majority of the people reject. Are there really no limits to the powers of Congress, the Administration or the Ju\diciary? Where is the stability of our laws derived from? Can anyone describe the boundary, or is there none?

  4. Patrick,

    The ACA itself doesn’t have widespread public support but polls consistently show that the public wants the government to do someting about the increasing cost of health care. And when you throw things out there like cutting back on Medicare or other government health care programs, there is very little public support for them. The default position of the American people is that this is something the government has to deal with, the Hamiltonians are winning this argument

  5. Obamacare is a perfect example of that. It never had the support of a majority of the population and looses support daily yet the governmnet passes it anyway and refuses to do anything about it.

    Well, and even beyond the “doing something” that Doug mentions, individual parts of the health care bill actually polled quite well, so polls just on the package as a whole don’t provide the whole picture.

    There is also the pesky fact that the electorate did send a large Democratic majority to both chambers of Congress and a president to the White House in 2008–a party that has been trying to accomplish health care reform for decades. No small thing, that.

  6. sam says:

    @Doug

    “The ACA itself doesn’t have widespread public support but polls consistently show that the public wants the government to do something about the increasing cost of health care”

    Actually, if you ask the question, What do you think of the Health Care Law, you do get that reaction. But if you start listing out the provisions, eg, no denial for pre-existing conditions; no rescission; no life-time caps, and so on, the approval goes way up into the 70% range. See, Public support for components of health care law

  7. floyd says:

    Doug;
    The most luxurious and comfortable cage is still a cage. This is not about economics, it’s about liberty. Those who don’t understand it… Hate it.

  8. anjin-san says:

    > Something tells me the Tea Party is about to change all that.

    Something tells me the tea party leaders will be far too busy feathering their own nests to change much of anything…

  9. anjin-san says:

    > it’s about liberty

    Yes, many on the right have made that clear. They hate socialized medicine and want the government to keep away from their Medicare.

    If the rights line of BS on this issue was not so downright sad, it would be pretty damn funny.

  10. Andyman says:

    The individual mandate ought to be thought of in terms of Tyler Cowen’s essay that James linked to earlier.

    Specifically, going without health insurance because you know that you can’t or won’t be denied emergency care is quite analogous to engaging in speculation on such a scale that it’s likely the government will bail you out in the event of a crash. In both cases the actor privatizes the profits and socializes the losses; both are examples of the same anti-social behavior.

    Cowen wrote that it’s extremely difficult to stop trading desks from going short on volatility. Well, it’s extremely easy to keep people from doing that with their health. Make them buy insurance or pay a small fee to cover the cost society pays for their free-ridership.

    This isn’t that difficult, people.

  11. An Interested Party says:

    “Something tells me the Tea Party is about to change all that.”

    Oh, keep hoping…the Tea Party crowd certainly had no ability to stop the recent budget-busting tax deal…

  12. […] the basic purpose and function of the judiciary and, by extension, their respective visions of the proper role of the government. Generalizing very broadly (all appropriate caveats assumed), the Left is concerned foremost with […]

  13. floyd says:

    Anjin-san;
    Thank you once again for your support, you are so often my greatest ally here.{;<)}

  14. Bob In Zion says:

    So if the government can compell me through a tax or fine (depending on the court they are in) to buy health insurance why can’t they do the same thing to force me to buy more vegetables and less meat? A Smart4Two car because the better mileage will force down gas prices (better for everyone) and help the evironment?

    That said, let’s be clear, the purpose of Obama care has nothing to do with getting people more coverage, to hold down prices, or to make things more equitable. The purpose of it is to make it so difficult for insurance companies to comply with it’s mandates that they quit selling insurance and force people to a government run system.

    BTW, had they just gone “all the way” and said Medicare will cover everyone, and the premiums will go to 10% of your salary I think they’d have been in much better shape with the courts than they are with the individual mandate.

  15. The purpose of it is to make it so difficult for insurance companies to comply with it’s mandates that they quit selling insurance and force people to a government run system.

    Because creating millions of new customers for the insurance companies will run them out of business, yes?

  16. Jay Tea says:

    You know, I am reversing my opinion on ObamaCare, and the philosophy behind it. I’ve come around to that way of thinking — and want to expand upon it. The mere POTENTIAL that one can cause costs on society should be enough to merit government intervention to keep people from making wrong choices.

    I modestly propose start with those receiving welfare and other public assistance. Let’s have mandatory contraception for them, because obviously if they can’t support themselves, they can’t support children. That’s more money they’ll cost us, so no kids for them.

    Let’s also toss in mandatory regular testing for alcohol, tobacco, and illegal drugs. The alcohol we can tolerate in moderation, but tobacco and illegal drugs? We’re paying for them, so we own them, and they’re damaging our property.

    Let’s also restrict food stamps (or whatever they’re calling it now — I think it’s EBT) to only healthy foods. No junk foods, no foods that are decidedly unhealthy. Have government nutritionists set up restrictions on what food they get.

    If we can restrict people’s freedoms based solely on the POSSIBILITY that they could eventually cost us all money, we sure as hell can take people who are ALREADY costing us money and restrict them to avoid costing us more.

    As far as their rights to refuse… well, no one’s forcing them to accept public assistance. They don’t like the restrictions, they don’t have to accept it.

    Let’s get this started, and started Swiftly. These people are already costing us too damned much already.

    J.

  17. Jay Tea says:

    Well, Steven, forcing them to take on tons of new customers that end up costing them money will certainly swell their coffers to overflowing…

    J.

  18. Well, Steven, forcing them to take on tons of new customers that end up costing them money will certainly swell their coffers to overflowing…

    You do realize that we are talking about a lot of healthy individuals currently abstaining from insurance because they don’t think they need it right now, right?

    The insurance companies don’t like the pre-existing conditions issue, to be sure. They do like more customers, however.

  19. Jay Tea says:

    No, they like more PROFITABLE customers, Steven.

    Have you seen how things are playing out in Massachusetts? Companies are looking at their premiums, comparing them to the fines for not offering insurance, and finding it cheaper to dump their health plans — and why not? The state will pick it up.

    Individuals are doing the same thing, comfortable in the knowledge that if they get sick, they can just sign up immediately and their pre-existing condition will be covered.

    Insurance companies are asking for rate hikes to avoid losses, being denied, and are threatening to pull out of the state entirely.

    Some insurers have decided that offering coverage for children is just not profitable, so they’re dumping that.

    In brief, the government has NO CLUE how to run the business, but they’re still trying anyway. And why not? it’s not like they’ll have to pay the price for their incompetence.

    J.

  20. Fog says:

    We have the most expensive, most privatized healthcare system in the world, but we can’t cover 50 million of our own, and our health outcomes are just middle-of-the-pack compared to other industrialized countries. Isn’t that the definition of “inefficient?” Andyman had it down.

  21. Alex Knapp says:

    I modestly propose start with those receiving welfare and other public assistance. Let’s have mandatory contraception for them, because obviously if they can’t support themselves, they can’t support children. That’s more money they’ll cost us, so no kids for them.

    Sounds good to me. I’d prefer that Wall Street bankers be sterilized. Along with everyone who owns a home (since they’re subsidized through tax credits and deductions). Oh, and don’t forget everyone who’s on Social Security — although I guess it’s too late for them. And don’t forget contraception for farmers and owners of farms — you know, like Michelle Bachmann, who gets hundreds of thousands in subsidies for her “family farm.” Let’s see, who else? Ah yes, anyone who went to a public college. Anyone who drives on the Interstate (damn free-riders). Anyone who owns shares in oil or telecommunications companies. Anyone who owns a share in a Major League Baseball or National Football League team. Anyone who has money deposited in a bank. Anyone who lives in an area that has police and fire coverage. Anyone who has ever filed or defended a lawsuit. Anyone who makes money from intellectual property. Anyone who attended a public school. Anyone who lives within an area protected by the United States military. Anyone who has ever flown on a plane.

    I’m sure there are others I can’t think of off the top of my head, but the list is starting to seem a little impractical.

  22. Jay Tea says:

    Alex, let’s not rush into things. Let’s start with those who take direct aid from the government for their day-to-day needs. Let’s see how that works out, then look at expanding it.

    I realize that flies in the face of the whole ObamaCare philosophy — “let’s fix everything all at once, and hope like hell that it all works as we predict it will!” — but I think a more graduated implementation would be more successful. Change a little, see what happens, then go on from there.

    J.

  23. Observer says:

    @Jay Tea,

    That was a rather beautiful job of missing the point.

  24. Jay Tea says:

    Missing the point, Observer? Hardly. Saw that sucker coming a mile off, sidestepped it with ease.

    J.

  25. floyd says:

    “”Along with everyone who owns a home (since they’re subsidized through tax credits and deductions).””
    “”””””””””””””””””””””””””””””””””””””””
    Alex;
    Home ownership is not subsidized, it is taxed and HEAVILY.
    I have owned six houses over the years and was never eligible for a tax credit or deduction, but I do have to pay $20 per day to live in our present home.
    Mortgage payments are allowed tax credits and deductions, which applies to no one who owns his home. Just another case of government encouraging bad habits.

    I do think you have a valid point though, if in fact you were trying to say that government in this country is already so bloated and intrusive that each of us finds their invasive little fingers in every aspect of our lives.
    Kinda makes the timid feel all warm and protected I’m sure.

  26. Alex Knapp says:

    @Jay,

    Alex, let’s not rush into things. Let’s start with those who take direct aid from the government for their day-to-day needs.

    I know that people hate having their precious “rugged individualist” myths shattered, but that would be everybody.

  27. floyd says:

    Alex;
    Pardon the “heritical Idea” but statism is a false religion and the state has feet of clay.
    Please confine yourself to reasonable argument, you are both more interesting and persuasive when you do, if not more right. (LOL)

  28. Jay Tea says:

    Well, Alex, I had some very specific notions in mind when I used the phrase “direct aid” and “day-to-day.” Something along the lines of “Hi, I’m from the government and here’s some money and food and vouchers. See you tomorrow.”

    You’re talking about far more abstract, indirect, and less obvious forms of support. Why don’t we work our way up to that?

    J.

  29. Alex Knapp says:

    Well, Alex, I had some very specific notions in mind when I used the phrase “direct aid” and “day-to-day.” Something along the lines of “Hi, I’m from the government and here’s some money and food and vouchers. See you tomorrow.”

    In that case, everyone over the age of 65. Farmers. Retired cops. Retired firefighters. Retired teachers. Retired veterans. Disabled people who aren’t capable of working. The families of every soldier who was killed in battle serving his country.

    That’s who you want to sterilize?

  30. Jay,

    Really what you are saying, so you might as well say it directly, is that it isn’t government that you don’t like, it’s welfare policy. Fair enough.

    Because things like roads, fire and police protection, baking regulations, food safety standards and the like are things that effect all of us daily (and some are quite concrete, indeed in the case of roads, literally so).

    There are also financial benefits to non-welfare recipients, including any number of tax credits and deductions. The easiest example is the mortgage interest deduction that home-owners (well, mortgage payers) receive.

  31. anjin-san says:

    > I realize that flies in the face of the whole ObamaCare philosophy — “let’s fix everything all at once, and hope like hell that it all works as we predict it will!”

    An incremental approach to health care reform would have almost certainly been more productive. Since the GOP was pretty much adamant about blocking reform, we ended up rushing things. There will probably be negative consequences as a result. I don’t see any of the “adults” on the right standing up and owning their role in the problem.