Tuesday, March 30, 2010

Today's Sick and Disabled Sailor

Recently, several groups and bloggers have been trotting out an act passed in 1798 for the relief of sick and disabled sailors as a precedent for Obamacare. (If you Google the 1798 act most of the references are from liberal bloggers or Democratic websites). This has been in response to the lawsuit filed by 13 state's attorney generals in response to the healthcare reform bill. One blog even went so far as to say the act created a mandate for sailors to purchase health insurance, even though that is not what is required under the act. That blog post was misleading for 2 reasons: 1) The 1798 legislation did not require sailors to purchase insurance; it required to the ship master to deduct a tax of .20 cents from their wages for the care of injured/sick sailors. 2) The individual mandate is levied on individuals if you do not purchase insurance, which is not what was set forth in this legislation.

The act was essentially a payroll tax; the revenues of which were used to care for sailors, as well as build and fund hospitals. It was not a mandate per the healthcare reform plan passed by the 111th Congress, because there was no tax for not purchasing something (essentially a fine); the tax was deducted from their wages. Also, note how the 5th Congress was able to provide actual care in a few sections whereas Obamacare was insurance reform and does not really address the issue of care and was thousands of pages long. When one compares the two acts, the 1798 act is not much of a precedent for the individual mandate.

What no one has here to fore published on a blog was the debate from the House floor in April 1798 which can be found in the Annals of Congress, House of Representatives, 5th Congress, 2nd Session, pp. 1386-1393

Mr Sewall of Massachusetts was the primary objector to the legislation in 1798. His objections to the bill were 1) sailors in Massachusetts would be taxed twice for such services since the state already required such a tax for hospital services, 2) only taxing sailors for this service, and 3) there would be no immediate benefits. Mr Sewall was countered by Mr Pinckney of South Carolina who noted 1) Massachusetts could repeal their state tax and this remove the burden of double taxation upon the sailors from that state, 2) the tax would be passed along to consumers as the merchants would lay the tax on his merchandise, and 3) the bill would go to the relief of distress and only secondarily to the building of hospitals. Mr Livingston of New York elaborated on Mr Pinckney's arguments. Mr Sewall countered that the hospitals would be used to care for foreign sailors and thus was unfair to tax U.S. sailors solely and that sailors would be driven from the country because of this tax. Mr Samuel Smith of Maryland and Mr Josiah Parker of Virginia also took part in the debate on the side of Mssrs Pinckney and Livingston.Mr Varnum of Massachusetts questioned the constitutionality of the act suggesting that it was not consistent withfederalism and was possibly in violation of the prohibition on direct taxation in Article 1, section 9. Mr Gallatin of Pennsylvania (eventually Pres. Jefferson's Sec. of Treasury) also joined the criticism of the bill stating that he believed sailors could care for themselves contrary to the principle of the bill (that they could not care for themselves); he was also opposed to the use of the revenue to build hospitals and the method of taxation, which he felt, like Mr Varnum, was a capitation tax. 

We are often told by people who believe the Constitution is a living document that we cannot look to the words of the Founders (Pinckney and Varnum were both delegates to the state ratifying conventions; I know these folks usually fall outside the usual definition of the Founders), because they often disagreed. Here is an example of where men so close to the Constitution could not agree on whether or not this legislation met constitutional muster.

The act was also amended in 1802.

There are questions about the constitutionality of the individual mandate, but this act is not a precedent for it and to suggest otherwise is disengenuous. Texas Attorney General Greg Abott discusses the states' lawsuit on BurkaBlog, and Dr. Jack Balkin writes about the constitutionality of the individual mandate for the New England Journal of Medicine.

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