Single Payer Is Doomed Too

Jonathan Bernstein describes the emerging liberal position on the Supreme Court and health care:

[T]he Roberts Court is unscrupulous, unprincipled, and nakedly partisan, and are going after the ACA for purely partisan reasons. So if only we passed single-payer, everything would be fine.

This sounds ridiculous to Bernstein, and it sounds ridiculous to me as well. The constitutionality of the individual mandate is straightforward; to borrow from the New York Times—“Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.” If the Court overturns the individual mandate, it will have less to do with precedent and more to do with an ideological opposition to the Affordable Care Act, which was manufactured at the moment that liberals adopted conservative ideas for health care reform.

In a world where the Supreme Court overturns health care reform for nakedly partisan reasons, what exactly will stop them from doing the same to single-payer health care, or any other scheme for universal insurance that liberals can devise? I have an answer!

Nothing, nothing at all.


Whether or not something is a mandate is largely a matter of how the issue is framed. Opponents of the mandate, for example, would argue that the famous case of Wickard v. Filburn involved the government's prohibition of a farmer's growing his own feed grain, but didn't mandate that he do anything. But if a farmer can't grow feed grain for his chickens he must retain grain that he would otherwise sell for revenue, buy feed grain from somebody else or sell his chickens. Or, I suppose, let them starve. That farmer's choices were a lot more stark than "buy insurance or pay a fine."

The best approach to funding the mandate would have been through a straightforward tax. Buy your own insurance or get it through work, your contribution or premium entitles you to a credit - and that could have even been broken down by pay period so that it would pretty much come out a wash for insured persons. But anti-tax demagoguery and obstructionist 'centrists' worked hard to make sure that nothing sensible could happen.

And you're absolutely right - the mandate was a right-wing creation, and the concept kicked around for about twenty years - and was even implemented in Massachusetts by a Republican governor who at the time held it up as a model for a national reform - without anybody whining about mandates being unconstitutional. That argument was ginned up by opponents to Obama, supported by... well, no direct legal authority, but since that time they've been working hard to generate some.

What would stop such a Supreme Court? In the long-term, a constitutional amendment. In the more immediate future, a fatality to one of the ultra-conservative members. I would shed no tears.

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