Single-Payer and the Supreme Court

When the Supreme Court begins its extraordinary three days of hearings on the constitutionality of the Affordable Care Act, one of the oddities will be an amicus brief challenging the act’s individual mandate from 50 doctors who support national health insurance. They point out the inconvenient truth that, contrary to the administration’s representations, the government did not need to require citizens to purchase insurance from private companies in order to meet its goals of serving the health-care needs of the populace. Congress could have enacted a single-payer law. 

Since the Constitution unambiguously gives Congress the power to tax, there has never been a serious constitutional challenge to our tax-supported systems of health insurance, Medicare, and the services of the Veterans Health Administration system. In the words of the brief:

Amici thus submit this brief for the purpose of disputing the primary tenet of the Government’s position, that Congress cannot regulate the national healthcare market effectively unless it has power to require that citizens purchase insurance from private insurance companies. On the contrary, as set forth herein, Congress has already demonstrated that it can regulate healthcare markets effectively by implementing a single payer system such as Medicare or the VHA.

Much of the brief is devoted to demonstrating the superior efficiencies of single-payer systems, but it is also offers a formidable summary of the constitutional argument against the government’s view of what the Commerce Clause permits.

Government contends that the provision is not only “reasonable” but also “necessary” to its broader regulation of the national healthcare market. Brief for Petitioners. In particular, the Government contends that the individual mandate is “key to the viability of the Act’s guaranteed-issue and community-rating provisions.” But while it might be true that these provisions will adversely impact private insurers’ profits, and that the individual mandate offsets this adverse impact by guaranteeing the private insurers a large stream of new customers who are required by law to purchase insurance, that is not sufficient to render the individual mandate constitutional. If it were, Congress could “reform” any private industry – whether it be automobiles, coal, pharmaceuticals or any other – by enacting legislation requiring every that American purchase the industry’s goods or services in exchange for some perceived public good the industry provides. Yet Congress has never before enacted such a mandate.

Ouch.

The brief further contends that none of the cases cited by the government “support the conclusion that the commerce power permits Congress to enact any regulation it finds necessary to the viability of a larger scheme regulating interstate commerce.”

It would be more than a little ironic if a majority of the Court struck down the Affordable Care Act by relying on these arguments. These points have been made by others, of course. But what’s nervy is that some single-payer advocates are tactically allying themselves with the political right in a momentous Supreme Court battle. 

The brief is filed in the name of two groups, Single Payer Action and It’s Our Economy, and was written by attorney Oliver Hall. It explicitly asks the Court to uphold the ruling of the Court of Appeals for the Eleventh Circuit finding the individual mandate unconstitutional.

This tactic must have given some single-payer advocates pause, since the most prominent single-payer group, Physicians for a National Health Plan (PNHP) and such noted proponents of national health insurance as Drs. David Himmelstein and Steffie Woolhandler of Physicians for a National Health Program are not on the brief. 

If the Affordable Care Act were to be struck down, it would be a political blow to the Obama administration, as well as another case of overreach by the Roberts Court. 

But the Court could well uphold the act. Some observers have suggested that the conservatives on the Court are having second thoughts about the unintended consequences of the Citizens United decision on unlimited political giving. Justices Scalia and Kennedy, moreover, have gone both ways on prior cases involving the reach of the commerce clause and may decide that this is not the time to further risk the Court as an institution, which severely impaired its credibility in Bush v. Gore.

On the other hand, if the Court struck down only the individual mandate, the rest of the act would live on. And the administration and Congress would have to find other ways to prevent uninsured people from free-riding on the system. As my colleague Paul Starr has proposed, a Court finding that the mandate was illegal would not necessarily kill the whole law. Other incentives and disincentives could be created so that most people would find it attractive to purchase insurance.

The amici have a point. A single-payer program would be more efficient and unambiguously constitutional, and even the Affordable Care Act need not be such a gravy train for the insurance industry. This brief, though risky, could turn out to be constructive mischief.

Comments

As the Chief Organizer of DUH, the Demonstration for Universal Healthcare (www.duh4all.org), I am one of those single-payer activists who atruggles between my allegience to President Obama (devout) and my rage and frustration over the ACA (fierce). I thank Mr. Kuttner for showing us another facet of the glittery fantasy that is the ACA.

I'm not a "New Agey" liberal, wailing about healthcare being a human right (though I believe it is) or wringing my hands over the evil of capitalism controlling access to healthcare (though it is evil). My view is more pragmatic and, perhaps to some, simple-minded.

In 2010, I paid 20% of my $32,000 income for premiums, co-pays, deductibles, and uncovered costs. In 2011, I paid 8% simply because I switched from the $100-per-month PPO to the $20-per-month HMO and quit going to the doctor. The co-pay to see any of the 4 specialists I'm supposed to see regularly is $40 a pop - half my weekly food budget. Now, even after the $1,500 deductible and co-pay are paid, insurance will only cover 90% of the costs. And I have "gold standard" Blue Cross Blue Shield insurance. Who in their right mind would not rather pay 4.5% healthcare tax and be able to get all the care they need from any provider they choose without co-pays, deductibles, co-insurance, fighting with insurance companies, having to see crappy doctors in crappy networks and get "pre-approved" for an ambulance as they're having aheart attack?

Right now, my employer pays over 10% of our operating budget on health insurance. What employer, especially small businesses, wouldn't rather pay a set 7.4% and know that all their employees will be healthier, less stressed out, and therefore, more productive?

It comes down to this question - what is best for ALL of us? Whether you believe healthcare is a right or not, no one can argue with the fact that it is a basic need. It is not a product to be bought and sold on Wall Street only by those who can afford to do so.

Republicans seem to have a problem with common sense. Either that, or they just don't WANT everyone to have healthcare access. Based on their rhetoric, I'd have to say that the latter is true. Ironically, for so many of them to call themselves "Christian," they seem determined NOT to care for the sick, poor, and vulnerable.

Whatever the Supremes end up doing, this non-reform will inevitably fail simply because, contrary to its name, the Patient Protection and Affordable Care Act is neither protective nor affordable. When it has gasped its last greedy breath, single-payer will stand as the only solution. The only question is how many people will have to suffer, go bankrupt, and even die before that happens?

First as a side note, Bush v. Gore was the SCOTUS signaling clearly that a majority of the justices had absolutely no interest in their credibility. They knew the reason they were appointed and they did their jobs. Were any embedded foreign moles or sleeper cells ever more effective than SCOTUS in attacking our system of government, and the very tenets the founders built it on?

Now onto the current issue before the Court.

I have but one question:

What is the difference between the government compelling individuals to make purchases from commercial providers, and the government taking tax dollars and using those dollars to make purchases from commercial providers in the name of individuals?

In fact, what do most of our tax dollars ever go for but to pay for such commercial products and services, particularly in the Department of Defense?

And if the court does strike down the Affordable Healthcare Act because it finds it unconstitutional for the government to compel individuals from purchasing commercial products, what does that do to one of the governments biggest activities, which is to purchase commercial products in the name of private citizens?

I guess that's three questions.

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