I’ve been planning a couple of posts about the District of Columbia’s role in some constitutional issues. But first I thought I’d dispense with one non-issue that used to trouble me, deep in the haunts of my doubting mind, like a subtle trick played by the Cartesian demon: Is the District unconstitutionally big?

Article I, section 8, clause 17, the Seat of Government Clause, gives Congress the power…:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States . . . .

The “ten Miles square” part is what worried me. Is ten miles square the same as ten square miles? Or is it equivalent to 100 square miles? It’s the latter. A mile square is a square with mile-long sides. Ten miles square is a square with ten-mile sides.

The District today has a land area of 61.4 square miles, according to the Census Bureau—68.3 mi², including the water area. It was originally the full 100 square miles, when President Washington selected the site. Apparently, the president even referred to the District as “the Ten Miles Square,” according to this D.C. history blog. The 31+ square miles originally ceded by Virginia were retroceded in 1847.

This video confirms the existence of an odd fact about our psychocultural landscape: that, despite Americans’ often sanctimonious attitude about our early history, it is widely considered hilarious that a sitting Vice President murdered the man who was the first Secretary of the Treasury, an essential delegate to the constitutional convention, a principal author of the Federalist papers (and co-namesake of this blog, therefore), and leader of the opposition party. It (the video, not the murder) is also clever, inventive with its lo-tech instrumentation, and generally awesome.

For all my earlier concern over the constitutionality of an individual mandate, I now believe I was laboring under a misconception—or, at least, a distraction. The issue is fundamentally not about the commerce power. It is a pretty straightforward issue of Congress’ Art. I, § 8 power of taxation.¹

Tim Jost sums up the relevant constitutional tax issues for the Georgetown O’Neill Institute blog.

[T]he Constitution recognizes four types of taxes: [1] “Duties, Imposts and Excises,” generally called indirect taxes, which must be uniform throughout the United States (Art. I, sec. 8, cl. 1); [2] capitation, or other direct taxes, which may only be imposed “in Proportion to the Census” among the states (Art 1, sec. 2, cl. 3; Art. 1, sec. 9, cl. 4); [3] export taxes, which are prohibited (Art. 1, sec. 9, cl. 4); and [4] the income tax, permitted by the 16th Amendment, which can be imposed without apportionment among the states.

The penalty to be imposed upon those who do not obtain health insurance is almost certainly an indirect tax, President Obama’s protestations notwithstanding.² (Or perhaps the President’s point is that the mandate is not a tax increase, even if it is authorized under the Article I power of taxation.) If the individual mandate is imposed uniformly throughout the states, then it will be constitutional—so long as it is free of other constitutional defects.

The only remaining concern would be interference with fundamental rights. This may come into play in special cases, but there is no recognized right to be uninsured. Or, in other words, there is no fundamental right to be let alone. The federal government can make you get health insurance—or pay the penalty.

1. See Timothy Noah’s article at Slate on the subject. [↩]
2. See http://www.politico.com/livepulse/0909/Obama_Individual_mandate_not_a_tax_.html. [↩]

Arguments that individual mandates are unconstitutional here and here. Arguments that they are constitutional here and here.

From the Baucus proposal¹:

Personal Responsibility Requirement. Beginning in 2013, all U.S. citizens and legal residents would be required to purchase coverage through (1) the individual market, a public program such as Medicare, Medicaid, the Children‘s Health Insurance Program, Veteran‘s Health Care Program, or TRICARE or through an employer (or as a dependent of a covered employee) in the small group market, meeting at least the requirements of a bronze plan, or (2) in the large group market, in a plan with first dollar coverage for prevention-related services as recommended by the U.S. Preventive Services Task Force – except in cases where value-based insurance design is used and cannot have a maximum out-of-pocket limit greater than that provided by the standards established for HSA current law limit. Exemptions from the requirement to have health coverage would be allowed for religious objections that are consistent with those allowed under Medicare, and for undocumented aliens. An individual enrolled in a grandfathered plan would be deemed to have met the responsibility requirement.

1. http://www.opencongress.org/baucus_bill_health_care.html. [↩]

To begin, it is clear that Congress may regulate health insurance under the commerce power. And it is clear that the federal government may tax individuals’ incomes in order to pay for and provide government health insurance. We do these things, in some measure, already.

But now we are contemplating something quite different. In last week’s address to Congress, the President endorsed the notion of individual mandates for health insurance. As a matter of policy, mandates are controversial, but they make sense in light of the President’s proposed regulatory scheme.¹ The question is, though, does the Constitution permit the federal government to directly impose upon its citizens duties of positive action, other than the duty to pay taxes, that are not imposed in connection with some benefit received from the government?

Certainly state governments could impose such mandates. In 1905, the Supreme Court upheld compulsory vaccinations as a valid exercise of the states’ police powers.² Possibly, then, the feds could “persuade” the states into imposing mandates, perhaps by making some Medicaid funding conditional on the states’ enactment of such a mandate—not unlike the manner in which federal highway funds are made contingent on adherence to federal guidelines for speed limits. But, of course, under such a scheme the states would be able to opt out in order to avoid the mandate—not entirely out of the question in today’s political climate (birthers, tea parties, and the like).

And certainly the feds could impose a tax on individuals (those with incomes, anyway) and use the revenues to create government-sponsored insurance for everybody, universal Medicare. But, besides the fact that such a plan is not on the table, it is a distinctly different proposition: you would not be compelled to enroll in or accept benefits from universal Medicare—just to pay for it. Or even you could be so compelled, it would not be the same as compulsory participation in private health insurance markets.

$117

It seems to me that the issue at stake here has a close parallel in the notoriously radical case of Wickard v. Filburn³, where the Court held that a farmer who exceeded his quota for wheat production (under the New Deal’s Agricultural Adjustment Act) could be fined, $117, even though his surplus was entirely for private, home consumption—not in interstate commerce. Filburn is still good law, in the sense that it was never reversed, but the Court has reined in its commerce-clause jurisprudence considerably since the 1940s, particularly in the last twenty years.

The interesting parallel is that farmer Filburn was fined not for selling too many bushels of wheat, but for growing them and not selling them—not for activity in the regulated market, but for activity outside the market (but related to it).

Under an individual mandate system, you might be fined (or forced to pay a tax penalty, which amounts to the same) for failing to purchase health insurance. Not for fraudulently claiming you had insurance, or claiming an extra deduction on your taxes (though these would be punishable, too)—but just for staying home and taking your chances: for “insuring” yourself, as it were, just as farmer Filburn produced for himself.

Or is the better analogy this one: imagine that Filburn, a dairy farmer, hadn’t produced a single bushel of wheat, but the AAA required all farms of acreage equivalent to Filburn’s to produce and contribute 222 bushels of wheat. Now could he be fined? No, we might say, but everyone consumes health care, and everyone has a responsibility to pool her risk and support the redistribution of that risk for the sake of everyone’s welfare, security, and peace of mind. Perhaps, but that’s the answer to a different question.

Everyone should have health insurance. I’m just not sure Congress has the authority to make them get it.

1. The plan is to regulate the individual insurance market by requiring insurers to cover everyone regardless of health status (”guaranteed issue”) and to charge everyone in the community the same premiums (”community rating”). Without a mandate, many health policy analysts believe, guaranteed issue and community rating would cause premiums to rise for everyone, leading healthy, risk-subsidizing people to drop their coverage. [↩]
2. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). [↩]
3. 317 U.S. 111 (1942). [↩]

Obviously, the Heir of Publius has been on extended leave. But today is its first anniversary, and the Constitution’s 222nd. Coming soon: would a federal mandate that individuals buy health insurance be constitutional?

The House passed H.R. 1586 today. The bill would levy a 90% tax on the AIG retention bonuses just issued. Is H.R. 1586 an unconstitutional bill of attainder, as some have claimed? I seriously doubt it.

Article I, section 9, clause 3 of the Constitution provides:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is a law that imposes punishment or retribution on certain, named individuals or a closed class of individuals. With language of sufficiently general applicability, Congress could claw back the AIG bonuses without running afoul of the Bill of Attainder Clause. H.R. 1586 targets employees or former employees of TARP recipients. I think that’s an open class—especially if TARP funds are still being distributed. It’s not just AIG employees, and not just past bonus recipients, who are within the bill’s reach.

Some members of Congress have expressed concern about the bill’s retroactivity. (See the Times story linked above.) But would this tax really be retroactive? The tax won’t be owed until April 15, 2010, for any bonus paid after December 31, 2008. And moreover, the Ex Post Facto Clause only prohibits retroactivity in criminal, or punitive statutes. Even a 100% tax on bonuses like these would not likely be considered punitive. The government here is acting not in a law-enforcement mode, but in a regulatory mode, trying to effectively and responsibly spend public dollars to stimulate economic recovery.

Chief Justice Roberts readministered the oath of office to President Obama tonight. Despite confidence that the earlier, mangled oath was in fact valid, they decided to call a do-over, just in case. But does that mean that Obama needs to redo every other official act he’s done since yesterday at noon?

As Chief Justice Roberts botched the presidential oath of office, I had a momentary fear that he would lead President Obama into an unforeseen chasm of constitutional error, immediately disqualifying him from office because of some ancient, masonic honor code . . . .

Really, though, it does appear that, although he becomes the President at noon on January 20th, the oath must be taken before the President may “execute” the office:

Before he enter on the Execution of his Office he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”¹

Can you really say “before he enter on…”? Whatever. Anyway, for those keeping score:
Roberts’ errors:
(1) called Obama “Senator”
(2) said “execute . . . faithfully” rather than “faithfully execute”;
(3) said “President to the United States”
(4) said “so help you God?”—which is just, like, bad form or something.

Obama’s errors:
(1) repeated “execute . . . faithfully”
(2) said he was the 44th person to take the oath. Actually, he’s just the 43rd. Grover Cleveland counts twice because his two terms were non-consecutive.

1. U.S. Const. Art. II, § 2. [↩]

At the birth of our republic, representatives in the “popular” branch of the national legislature were apportioned according to “the whole Number of free Persons . . . and . . . three fifths of all other Persons.” U.S. Const. Art. I, § 2. It is often remarked that our enslaved ancestors were treated as only 3/5 human, but this recognition rather understates the insult. Three of every five slaves were counted as persons—but only for the purpose of increasing the representation in Congress of the very people who owned those slaves. The representation of enslaved Americans was, of course, none—worse than none, because their numbers actually increased the representation and power of those who would bind the shackles of slavery around their ankles forever. Worse than dehumanizing, the Three-fifths Clause empowered the dehumanizers.

This is the valley out from which we climb. We made a great and tragic compromise to forge this nation, and we did so for one reason—because we cannot walk alone.

The founders of the nation pledged themselves to support the injustice of slavery, but only for twenty years.¹ We had twenty years to build the institutions of government which could one day open up the halls of justice and secure the blessings of liberty to our posterity, if not to ourselves. To be sure, many of those early patriots would sink to still lower injustices and fight against the cause of manumission. But to some it was clear even then that the tide of history and freedom would rise.

We gave ourselves twenty years—and then another two hundred years. At first we saw each other on opposite banks of the stream, and we drew from the same well. Eventually we drank from the same fountain and watched our children swim in the same pool. And all this time we carried a delicate cup—and waited for the waters to roll down. We have done unspeakable evils, but we must not bury them. We must hold them up to the light. Hold them to the light and wait for the waters.

Today we have witnessed together a mountain made low, and a valley exalted. Today we have seen, together, that we cannot and should not blot out that baleful miscalculation in our Constitution which made five into three—because we cannot walk alone.

And because from that perversion of humanity and mathematics has come the promise of a glorious secular miracle, a miracle by which we may make three hundred million into one.

1. Article V provided that the Constitution could not be amended to “in any Manner affect” the slave trade until 1808, roughly twenty years from the time of drafting. [↩]