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How Founding Fathers helped argue the health-care case at the Supreme Court

The clash of ideas at the core of the Supreme Court debate over Obama’s health-care law is as old as the nation itself, and the spirit of the Founders was present before the assembled justices.

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Clement’s strategy appears to have included enlisting the help of more than a few Founders.

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The lawyer turned a question about Congress’ taxing power into an anecdote about a 1794 debate between – who else? – Hamilton and Madison over whether a tax on carriages was constitutional. (Madison believed it invalid; Hamilton felt it was permissible.)

Clement went on to opine that the two Founders would have rejected the individual mandate.

The tactic deftly diverted the debate away from the complex details of federal health care as it exists in 2012 and whisked the court effortlessly back to 1794. 

“I have little doubt that both of them would have agreed that a tax on not having a carriage [like not having health insurance] would clearly have been a direct [and unconstitutional] tax,” he told the justices. “I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.”

Upon hearing the invocation of Madison and Hamilton, Justice Breyer returned to the national bank case, McCulloch v. Maryland.

“I think if we look back into history we see that sometimes Congress can create commerce out of nothing,” he said. “That’s the national bank which was created out of nothing to create other commerce out of nothing.”

Breyer recounted the long history of the Supreme Court upholding an expansive reading of Congress’s commerce power, including the federal regulation of home-grown wheat for farm-bound livestock.

“I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act,” Breyer said.

Clement replied that if the facts of the health-care law’s individual mandate were applied to the national bank case it would involve not just creation of a bank but also Congress ordering every citizen to deposit their money in the national bank to boost its solvency.

“I think the Framers would have identified the difference between those two scenarios,” Clement said. “And I don’t think that the great Chief Justice [Marshall] would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”

In his rebuttal, Verrilli offered a different perspective on the national bank case. Under McCulloch v. Maryland, Chief Justice Marshall left it to the democratically accountable branches of government to choose the means to address difficult national problems like health care, he said.

“This is actually a paradigm example of the kind of situation that Chief Justice Marshall envisioned in McCulloch itself,” Verrilli said. “That the provisions of the Constitution needed to be interpreted in a manner that would allow them to be effective in addressing the great crises of human affairs that the Framers could not even envision.”

Legal analysts following the case say the five justices on the court’s conservative wing appear prepared to strike down the individual mandate and perhaps significantly more of the reform law.

But it remains unclear whether they will take up the larger, historic challenge laid down by Judge Sutton.

A decision in the case, Department of Health and Human Services v. Florida (11-398), is expected by late June. 

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