Sunday, June 19, 2011

The Truth about Mandates

   The Truth about Mandates

 A Lesson is History, Principles and the difference  between Romney and Obama

Critics have characterized Mitt Romney's health care plan as an affront to liberty. However, the new-age version of liberty pushed by Romney’s critics contradicts the concept of liberty pioneered by the founding fathers. Romney's plan adheres to those principles of liberty upon which our nation was founded. In this treatment we will discuss early precedent in Massachusetts set by John Hancock, and especially by Samuel Adams who instituted in Massachusetts what can be considered the first mandated insurance-type program in the United States. As for Romney's mandate, critics judge it in a vacuum, evidently nescient regarding the fact that Romney's mandate largely replaced a federal mandate in effect which states that everyone may receive emergency treatment. Most plans proposed by Romney's critics leave intact this federal mandate, which takes power from states and creates a "right" to medical treatment, thus imposing a liability for state residents. Romney replaced that mandate with a mandate which encourages personal responsibility. So, to reiterate, Romney didn't create a mandate out of a void; he replaced one mandate with another, with his state mandate being a response to costly liabilities created by a federal mandate.

John Hancock, the first and boldest signer of the Declaration of Independence, was elected the first governor of Massachusetts, with over 90% of the vote (1). As governor, Hancock more than once mandated that all men, with few exceptions such as those over the age of 45 (the average life expectancy was less than 50 years), be counted as comprising a "militia" and furnish themselves with a number of goods at their own expense, mandates remaining in effect both in times of peace and war. Ultimately, Hancock signed into law on June 22, 1793 an act repealing and combining/revising his previous acts. This act of 1793 read in part:
"...each and every free, able bodied white male citizen of this or any other of the United States residing within this Commonwealth who is, or shall be of the age of eighteen years & under the age of forty five years (except as is herein after excepted) shall severally and respectively be subject to the requisitions of this act, and shall be enrolled in the militia ... every Non- Commissioned Officer & private of the Infantry shall constantly keep himself provided with a good Musquet, with an iron or steel rod; a sufficient bayonet & belt,—two spare flints, a priming wire & brush & a knapsack;— a cartridge box or pouch with a box therein to contain not less than twenty four cartridges suited to the bore of his Musquet ; — each cartridge to contain a proper quantity of powder & ball, or with a good rifle, knapsack, shott-pouch, powder horn, twenty balls suited to the bore of his rifle, & a quarter of a pound of Powder ... every non-commissioned Officer or private of the Infantry who shall neglect to keep himself armed and equipped as aforesaid, or who shall on a Muster day, or at any other time of examination, be destitute of, or appear unprovided with, the Arms and Equipments herein directed (except as before excepted) shall pay a fine not exceeding twenty shillings in proportion to the Articles of which he shall be deficient, at the discretion of the Justice of the Peace before whom trial shall be had(2).
John Hancock's first militia act, signed during a time of war, March 3, 1781, contained similar mandates:
"That that Part of the Militia of this Commonwealth commonly called the Training-Band, shall be constituted of all the able bodied Male Persons therein, from Sixteen years old to Fifty ... each and every Officer and private Soldier of said Militia, not under the Control of Parents, Masters or Guardians, and being of sufficient Ability therefor, in the Judgment of the Selectmen of the Town wherein he has his usual Place of Abode, shall equip himself, and be constantly provided with a good Fire-Arm, with a Steel or Iron Ramrod, and a Spring to retain the same, a Worm, Priming-Wire and Brush, and a Bayonet fitted to his Gun, a Scabbard and Belt here for, a Cartridge-Box that will hold Fifteen Rounds of Cartridges at least. Six Flints, one Pound of Powder, Forty Leaden Balls fitted to his Gun, a Haversack and Blanket, a Canteen sufficient to hold one Quart. And if any Officer or private Soldier shall neglect to arm and equip himself as aforesaid, for the Space of Sixty Days after Publication of this Act, he shall forfeit and pay a Fine of Five Pounds; to be recovered by Action of Debt in any Court proper to try the same, by the Clerk of the Company to which the Delinquent belongs...."(3)
Each of these acts also afforded for the truly indigent to receive some measure of aid in acquiring the mandated goods, but those who could afford to furnish themselves with the goods and failed to do so were fined.

Hancock’s Massachusetts mandates were soon copied by other states, ultimately inspiring a similar federal militia mandate enacted under President George Washington(4).

Some parallel could be made between Hancock's state mandate being copied by Washington at the federal level and Barack Obama's claim that he copied Romney's state mandate at the federal level. However, the big difference between these two scenarios is that Washington copied Hancock's mandate using specific constitutional authority granted by the militia clause which had freshly been crafted as part of the constitution itself (article 1, Sec. 8, clause 15-16). This federal mandate is an exception to federal power. Because, generally speaking, the federal government has no constitutional authority to require citizens to purchase goods or services. The constitutional authority to impose federal mandates while regulating militia is one of few exceptions provided in the constitution. The constitution does not similarly limit states but leaves them free to impose a variety of mandates.

In addition to regulating militia, the U.S. constitution grants the federal government authority to regulate certain types of commerce (article 1, Sec. 8, clause 3). As it had done with their militia authority, the federal government under the founding fathers used its new commerce authority to federally mandate within that narrow scope that citizens purchase goods and/or services.

The commerce clause enabled the federal government to act in some respects like a state on questions relating to navigable waters which states have no jurisdiction over. And when given that chance to act like a state, the founders used that "state-like" power to create a health care mandate. Thus, the early federal government set a form of precedent, or special legitimacy, for states to enact health care mandates.

In the federal act in question which regulates health care in the case of commerce, "An act for the government and regulation of seamen in the merchants' service" (July 20, 1790), the founders mandated that:
"every ship or vessel, belonging to a citizen or citizens of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once, at least, in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided, and kept fit for use, the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner."
This mandate to purchase health care goods falls within that limited scope of the commerce clause, and as such only constitutes a precedent for future state action, not federal action (outside navigable waters).

On the commerce clause, James Madison implied such a narrow scope: "If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."(5)

Some might believe these mandates imposed by the founding fathers were an affront to liberty. The opposite is true. Liberty is not free. Individual liberty within a society comes from the strength of the society. The interests of that society, therefore, are a responsibility of each citizen. The question is whether the sacrifices required to secure liberty are to be properly determined at a state level or a federal level. The U.S. constitution answers this question, in affirmative to the states, by limiting the powers of the federal government but not the powers of the states, and declaring itself thus as ordained to "secure the blessings of liberty to ourselves and our posterity."

Like the founding fathers, Ronald Reagan supported the right of states to exercise wide discretion with respect to how they govern themselves. As Reagan explained, "The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues." (October 26, 1987) (6).

200 years earlier, James Madison explained the same concept,”The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” (January 26, 1788) (5).200 years from now, our descendants will continue to reiterate this concept, if we continue to teach and preserve it and elect officials who understand the difference between state and federal mandates.

The founders enabled states to serve as "laboratories of democracy,"(7) where citizens are free to experiment and to decide in which states they reside and/or conduct their business. In this way, states compete with each other using principles of free market capitalism, and yet also are free to adopt the ideas that work in other states and learn from their errors, creating a win/win situation prompting each other to success. Federal government intervention disrupts the process, as it eliminates experimentation and trial and error, taking away from citizens the freedom to choose different approaches and to disagree with people in neighboring states.

States keep each other in check through competition, but the Federal government has no one to keep it in check except its own branches, which highlights the importance of electing people to office who understand and defend the constitution.

For this same reason, perhaps the single most destructive consequence of applying a mandate at the federal level is that it takes away our ability to measure the effectiveness of the mandate. To put this in terms of science, it removes the controls. For instance, if conditions worsen after a federal mandate goes into effect, the federal government can claim conditions would have been even worse without the mandate. The federal government gets away with this because there are no controls to prove otherwise. However, if conditions improve after a federal mandate goes into effect, the federal government attributes the improvement to the mandate. In contrast, when an individual state implements a mandate it can compare its progress with national trends across the other states. If conditions worsen, the state can ask how conditions have fared compared with other states. If conditions improve, the state can do the same thing.

In the case of Massachusetts health care, Romney's approach continues to be popular in the state, as it has always been, and has proven effective even with the costly provisions Romney vetoed which the legislature overrode, and even with the costly changes enacted after Romney left. 75% of Massachusetts residents are satisfied with it, and that fact alone should tell residents of other states to mind their own affairs.

The founders understood the importance of states’ rights, but none understood that importance more than the famed champion of states’ rights, Samuel Adams, signer of the Declaration of Independence and successor to John Hancock as governor of Massachusetts.

As governor of Massachusetts, Samuel Adams practiced his unsurpassed understanding of states’ rights, a concept he personally crafted. Adams signed into law what could be considered the first Massachusetts insurance mandate: a program requiring residents of each town in the state to create pools of funds to be dispensed for the care of any resident of the town who should happen to fall into pauper status(8). This is not to be confused with vagrancy. Most residents at the time had some risk of becoming paupers if circumstances beyond their control, such as health, kept them from performing labors for an extended period of time. By contributing their share to Paupercare, residents helped insure against risks to their own future safety, should unfortunate circumstances arise.

Critics might try to claim that Samuel Adams' mandate was merely a tax. However, these were not general funds but special pools of money collected and set aside for this purpose, like an insurance plan. The primary difference in structure between Paupercare and Romneycare is that Romney used private insurance, whereas Samuel Adams mandated that public towns function as insurance bodies. Arguably, this makes Romney's plan more conservative.

And so there can be no mistake, Paupercare included an individual mandate for family members to assume responsibility, followed by the larger community, as directed by community overseers:
"Be it further enacted, that said Overseers shall have the care and oversight of all such poor and indigent persons so settled in their respective Towns and Districts; and shall see that they are suitably relieved, supported and employed either in the workhouse, or other tenements belonging to such Towns or Districts or in such other way and manner, as they, at any legal meeting shall direct, or otherwise at the discretion of said Overseers, at the cost of such Town or District. Provided always and be it further enacted, that the kindred of any such poor person, if any he shall have, in the line or degree, of Father or Grandfather, Mother or Grandmother, Children or Grand children, by consanguinity living within this Commonwealth, of sufficient ability, shall be holden to support such Pauper, in proportion to such ability.... And be it further Enacted, that said Overseers shall also relieve and support, and in case of their decease, decently bury all poor persons residing or found in their towns or districts, having no lawful settlements within this Commonwealth, when they stand in need; and may employ them as other paupers may be; the expense whereof may be recovered of their relations, if they have any, chargeable by law for their support, in manner herein before pointed out ... And every town and district shall be holden to pay any expense which shall be necessarily incurred for the relief of any pauper, by any inhabitant not liable by law for his or her support ... if any person shall bring and leave any poor & indigent person in any town or district in this Commonwealth, wherein such pauper is not lawfully settled, knowing him to be poor & indigent, he shall forfeit and pay the sum of twenty pounds, for every such offense ... And be it further Enacted, that it shall also be the duty of said Overseers, in their respective towns or districts, to provide for the immediate comfort and relief of all persons residing, or found therein, not belonging thereto, but having lawful settlements in other towns or districts, when they fall into distress, and stand in need of immediate relief, & until they shall be removed to the places of their lawful settlements..."
Each town was given wide discretion in deciding how to raise the necessary pool of funds, determined by a vote of the town people. They were also to, "at their annual meetings," choose the overseers. Additionally, the act authorized the court of common pleas of each county to hear complaints filed by towns and/or kindred who were struggling with their ability to carry out the mandate, and to provide relief on a per-case basis in the form of weekly sums "as they shall judge sufficient for the support of such Pauper."

By the standard of some self-proclaimed patriots, with limited knowledge of U.S. history, Paupercare infringed on the liberty of residents who were mandated to pay premiums as decided by each town, and particularly unfair to the kin who were mandated to provide personal aid to paupers. However, the Massachusetts constitution, Part 1, Article 10, as penned by John Adams, tells a different story:
"Each individual of the society HAS A RIGHT TO BE PROTECTED by it in the enjoyment of his life, liberty and property, according to standing laws. HE IS OBLIGED, CONSEQUENTLY, TO CONTRIBUTE HIS SHARE TO THE EXPENSE OF THIS PROTECTION; TO GIVE HIS PERSONAL SERVICE, OR AN EQUIVALENT, WHEN NECESSARY; but no part of the property of any individual, can, with justice, be taken from him or applied to the public uses without his own consent, OR THAT OF THE REPRESENTATIVE BODY OF THE PEOPLE. In fine, the people of this Commonwealth are not controllable by any other laws, than those to which their constitutional representative body have given their consent..." (CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS, Part 1, Article 10, emphasis added)
It is the right, therefore, of every individual residing in Massachusetts to be protected by it in whatsoever fashion as is decided by the people through their representative body. This included “Paupercare,” and likewise includes "Romneycare."

Those who are not willing to abide the precepts of the Massachusetts constitution are free to reside in a different state. They are not free however to abdicate personal responsibility for knowing the constitutional expectations associated with their choice to reside in the state of Massachusetts.

Neither “Paupercare” nor “Romneycare” is a hand-out or a bail-out, but a plan to restore residents to full working order where they can once again contribute their own share as productive members of society. Thus aiding a strong society and helping preserve liberty.

Some have questioned why Mitt Romney, when faced with the Massachusetts health care crisis, implemented mandates. What they do not realize is that the choice Romney faced was between mandates and bailouts. Put another way, the choice was between personal accountability and hand-outs. Massachusetts had the highest health care costs in the nation, and Romney had to act. After consulting with the Heritage Foundation and other conservative groups, and in concert with the legislature, which overwhelmingly agreed with Governor Romney, and also with the people, who also overwhelmingly agreed, Romney called upon all residents to "contribute their share" to the solution - as residents are obliged under the constitution to do. Together, they ended the medical bailouts which had caused so much chaos.

Romney understood that in the liberal state of Massachusetts the legislature he had to work with might add provisions he objected to - and they did. He also understood that future elected officials might add risky features to the plan - and they have. But he understood that as long as the federal government stayed out of the matter, aside from continuing to provide standard (non-“stimulus”) aid to each state (which Massachusetts incorporates into its health care plan, and other states continue to use for hospital bailouts), Massachusetts state law would be kept in check by the capitalist forces imposed by other states, thereby narrowing unwise expansion and forcing a pruning of provisions which fail. However, the enemy of states' rights, federal intervention, threatens setbacks.

Obama's unsustainable policies have used borrowed money to bail out states even though they continue failed policies, thereby artificially suspending capitalist forces between states. Massachusetts liberals have changed Romney's health care plan, and although the plan has still been effective, only time will tell if their changes will be sustainable. Possibly the worst thing that could happen is for the federal government to continue bailing out states instead of allowing capitalist pressure to force states to restructure their policies. In the case of Massachusetts, this would mean a return to Romney's original health care plan, ideally including a repeal of the provisions which Romney vetoed but which the legislature overrode. Romney structured his original plan to ensure no increased costs to the state. Romney reorganized and streamlined the state medical budget to work with citizens toward acquiring private insurance policies, successfully insuring virtually every citizen.

(1) Fowler, Baron of Beacon Hill, 243-44.



(4) The Militia Act of 1792, Passed May 8, 1792, (providing federal standards for the organization of the Militia).

(5) Federalist, No. 45.

(6) Executive Order 12612 -- Federalism October 26, 1987.

(7) Supreme Court Justice Louis D. Brandeis, Dissenting Opinion: New State Ice Co. v. Liebmann, 1932.

(8) Acts and Laws, Passed By The General Court Of Massachusetts, 1793, Chapter 59, "An Act Providing For The Relief And Support, Employment And Removal Of The Poor, And For Repealing All Former Laws Made For Those Purposes”. 

The Article

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