Could a Supreme Court decision against Obamacare lead to a public option?

    As you know, the Supreme Court has been hearing arguments this week on the constitutionality of the Affordable Care Act, or what’s become known as Obamacare. Specifically, the Justices are considering whether or not the government can, in accordance with the Constitution, compel the citizens of the United States to purchase health insurance. The decision will come down this summer, but, as of right now, the Court looks evenly split, with Justice Kennedy sitting in the middle. I’m inclined to think, because I’m a pessimist, that Kennedy will side with Alito, Roberts and company, effectively gutting the legislation, and robbing millions of their right to affordable health care. But, some are saying that such a move on the part of the Supreme Court may not be such a bad thing, as it may ultimately put us on the path toward a single payer system, which is where we should have been all along. Following are quotes from both former Labor Secretary Robert Reich and George Zornick, a columnist for The Nation, on that possibility.

    GEORGE ZORNICK:

    …To give a nickel-version of the dispute here: under health care reform, the federal government will begin requiring people to purchase private health insurance in 2016, or face a $695 penalty. (People who can’t afford it would get an exemption). Opponents of the law argue this is an unconstitutional coercion of individuals by the federal government, while the administration argues it is within Congress’s right to require the purchase of health insurance under the Commerce Clause of the Constitution. The reasoning is that the federal government clearly has the power to regulate the health insurance industry under that clause, as it spans every state in the nation.

    If the Court strikes down the mandate, then the part of health care reform that forbids health insurance companies from denying coverage to people with pre-existing conditions would almost certainly be repealed. If the government forbid those denials but didn’t force people to first buy a plan, then plenty of people would just wait until they got sick to buy insurance.

    This would be a critical blow to one of the central premises behind health care reform. Re-instituting the individual mandate would be unconstitutional. So what then?

    One obvious option, besides just doing nothing and allowing health care costs to continue their exponential growth while more people lose coverage, is a single-payer health insurance plan. There is no doubt about the constitutionality here—the government is clearly allowed to levy taxes to fund public benefits. Medicare, for example, is not challengeable on the same grounds as Obama’s health care reform.

    So if health care reform goes down, the next logical step may well be just extending Medicare to everyone. This was not politically possible in 2009, but perhaps the demise of “Obamacare” would make it moreso as legislators looked for other solutions…

    ROBERT REICH:

    …The dilemma at the heart of the (Affordable Care Act) is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

    Yet the only way private insurers can afford to cover everyone with preexisting health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.

    This dilemma is the product of political compromise. You’ll remember the Administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it…

    The President and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option.

    After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.

    Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.

    There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)

    Even if private health insurers are organized as not-for-profits, there’s still a problem of public accountability. What’s to prevent top executives from being paid small fortunes? (In more than a few cases this is already happening.)

    Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.

    So why not Medicare for all?

    Because Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and seek to privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.

    Obama and the Democrats should do the reverse. If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

    When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

    If they did this the public will be behind them — as will the Supreme Court.

    So, what do you think? It it even remotely possible that a Supreme Court decision against the administration could be a good thing in this instance?

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      14 Comments

      1. Posted March 28, 2012 at 8:49 pm | Permalink

        Regardless fo what it might mean for the sick and uninsured among us, James Carville thinks it could be good for the Democrats come November, if the Supreme Court strikes the law down… And I guess that’s all that matters, right?

        Court loss ‘best thing’ for Democrats – “I think this will be the best thing that ever happen to the Democratic party because health care costs are gonna escalate unbelievably. I honestly believe this, this is not spin.”

      2. Edward
        Posted March 29, 2012 at 6:57 am | Permalink

        This whole thing makes me sick. It’s like the Bush v. Gore decision playing out all over again. Pure politics.

      3. EOS
        Posted March 29, 2012 at 7:05 am | Permalink

        The public option is Medicaid without destroying the current insurance plans of the majority. Is this going to be good for Democrats? Not likely, considering more than 70% of Americans are opposed to Obamacare.

      4. jacksmith
        Posted March 29, 2012 at 7:07 am | Permalink

        REALITY!! And A Fix for Unemployment, Homelessness and Hunger

        In addition to fixing healthcare the right way we need a NewDeal. We need a permanent and updated FDR WPA (Works Progress Administration). A Full employment act requiring the government to provide a job for everyone able to work that wants to work at a living wage or better. At safe, meaningful work where they live. Guaranteed by the US government. With free or very affordable excellent healthcare and free or very affordable education and training for advancement or just personal enrichment.

        ( http://my.firedoglake.com/iflizwerequeen/2011/05/16/how-about-a-little-truth-about-what-the-majority-want-for-health-care/ )

        ( Gov. Peter Shumlin: Real Healthcare reform — http://www.youtube.com/watch?v=8yFUbkVCsZ4 )

        ( Health Care Budget Deficit Calculator — http://www.cepr.net/calculators/hc/hc-calculator.html )

        ( Briefing: Dean Baker on Boosting the Economy by Saving Healthcare http://t.co/fmVz8nM )

        START NOW!

        As you all know. Had congress passed a single-payer or government-run robust Public Option CHOICE! available to everyone on day one, our economy and jobs would have taken off like a rocket. And still will. Single-payer would be best. But a government-run robust Public Option CHOICE! that can lead to a single-payer system is the least you can accept. It’s not about competing with for-profit healthcare and for-profit health insurance. It’s about replacing it with Universal Healthcare Assurance. Everyone knows this now.

        The message from the midterm elections was clear. The American people want real healthcare reform. They want that individual mandate requiring them to buy private health insurance abolished. And they want a government-run robust public option CHOICE! available to everyone on day one. And they want it now.

        They want Drug re-importation, and abolishment, or strong restrictions on patents for biologic and prescription drugs. And government controlled and negotiated drug and medical cost. They want back control of their healthcare system from the Medical Industrial Complex. And they want it NOW!

        THE AMERICAN PEOPLE WILL NOT, AND MUST NOT, ALLOW AN INDIVIDUAL MANDATE TO STAND WITHOUT A STRONG GOVERNMENT-RUN PUBLIC OPTION CHOICE! AVAILABLE TO EVERYONE.

        For-profit health insurance is extremely unethical, and morally repugnant. It’s as morally repugnant as slavery was. And few if any decent Americans are going to allow them-self to be compelled to support such an unethical and immoral crime against humanity.

        This is a matter of National and Global security. There can be NO MORE EXCUSES.

        Further, we want that corrupt, undemocratic filibuster abolished. Whats the point of an election if one corrupt member of congress can block the will of the people, and any legislation the majority wants. And do it in secret. Give me a break people.

        Also, unemployment healthcare benefits are critically needed. But they should be provided through the Medicare program at cost, less the 65% government premium subsidy provided now to private for profit health insurance.

        Congress should stop wasting hundreds of millions of dollars of taxpayer money on private for profit health insurance subsidies. Subsidies that cost the taxpayer 10x as much or more than Medicare does. Private for profit health insurance plans cost more. But provide dangerous and poorer quality patient care.

        Republicans: GET RID OF THE INDIVIDUAL MANDATE.

        Democrats: ADD A ROBUST GOVERNMENT-RUN PUBLIC OPTION TO HEALTHCARE REFORM.

        This is what the American people are shouting at you. Both parties have just enough power now to do what the American people want. GET! IT! DONE! NOW!

        If congress does not abolish the individual mandate. And establish a government-run public option CHOICE! before the end of 2011. EVERY! member of congress up for reelection in 2012 will face strong progressive pro public option, and anti-individual mandate replacement candidates.

        Strong progressive pro “PUBLIC OPTION” CHOICE! and anti-individual mandate volunteer candidates should begin now. And start the process of replacing any and all members of congress that obstruct, or fail to add a government-run robust PUBLIC OPTION CHOICE! before the end of 2011.

        We need two or three very strong progressive volunteer candidates for every member of congress that will be up for reelection in 2012. You should be fully prepared to politically EVISCERATE EVERY INCUMBENT that fails or obstructs “THE PUBLIC OPTION”. And you should be willing to step aside and support the strongest pro “PUBLIC OPTION” candidate if the need arises.

        ASSUME CONGRESS WILL FAIL and SELLOUT again. So start preparing now to CUT THEIR POLITICAL THROATS. You can always step aside if they succeed. But only if they succeed. We didn’t have much time to prepare before these past midterm elections. So the American people had to use a political shotgun approach. But by 2012 you will have a scalpel.

        Congress could have passed a robust government-run public option during it’s lame duck session. They knew what the American people wanted. They already had several bills on record. And the house had already passed a public option. Departing members could have left with a truly great accomplishment. And the rest of you could have solidified your job before the 2012 elections.

        President Obama, you promised the American people a strong public option available to everyone. And the American people overwhelmingly supported you for it. Maybe it just wasn’t possible before. But it is now.

        Knock heads. Threaten people. Or do whatever you have to. We will support you. But get us that robust public option CHOICE! available to everyone on day one before the end of 2011. Or We The People Of The United States will make the past midterm election look like a cake walk in 2012. And it will include you.

        We still have a healthcare crisis in America. With hundreds of thousands dieing needlessly every year in America. And a for profit medical industrial complex that threatens the security and health of the entire world. They have already attacked the world with H1N1 killing thousands, and injuring millions. And more attacks are planned for profit, and to feed their greed.

        Spread the word people.

        Progressives, prepare the American peoples scalpels. It’s time to remove some politically diseased tissues.

        God Bless You my fellow human beings. I’m proud to be one of you. You did good.

        See you on the battle field.

        Sincerely

        jacksmith – WorkingClass :-)

      5. Tommy
        Posted March 29, 2012 at 7:24 am | Permalink

        I for one think that the route of single payer is the only viable option to assure that all Americans are covered. I can’t understand how any employer would not jump onboard such a scheme. It is so easy to administer. No negotiations, no hassles. Payrolls are already set up to take out Medicare and Social Security. The same could be done for all employees. That is the simple part. The hard part – perhaps the impossible part – would be to pretty much detstroy Big Pharma, Big Insurance, and the AMA’s clout not to mention the millions of people who are employed in the Healthcare Industry in order to start fresh.

      6. Posted March 29, 2012 at 8:00 am | Permalink

        I hope so. I really do, but I doubt it.

      7. Posted March 29, 2012 at 9:04 am | Permalink

        The numbers on Obamacare are actually pretty evenly split. Gallup puts it at 47% for SCOTUS repeal and 42% against. And these are the most recent numbers which come after months of sustained attacks during the GOP campaigns.

        The only place I’ve heard the 70% figure used is on one of the fox news commentary shows. Nothing resembling a reliable source.

      8. Eel
        Posted March 29, 2012 at 9:06 am | Permalink

        Obama should have been more aggressive in the first place. This is the price you pay for timidity.

      9. ChelseaL
        Posted March 29, 2012 at 2:28 pm | Permalink

        Seriously, I don’t understand why we don’t have socialized healthcare in this country. I’d take my chances on it. Wouldn’t you?

      10. Meta
        Posted March 29, 2012 at 2:35 pm | Permalink

        Slate has a good article on the Supreme Court’s “Dark Vision of Freedom” as displayed in these recent hearings.

        http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/03/supreme_court_and_obamacare_why_the_conservatives_are_skeptical_of_the_affordable_care_act_.html

      11. Meta
        Posted March 29, 2012 at 2:46 pm | Permalink

        Also.

        Mother Jones reporter Adam Serwer reports on SCOTUS v Obamacare; the poor analogies, Limiting Principle, the Individual Mandate (is it severable?) and the effect of court’s partisan make-up.

        http://majority.fm/2012/03/29/329-adam-serwer-on-disaster-that-is-scotus/

      12. Edward
        Posted March 30, 2012 at 8:30 am | Permalink

        Eugene Robinson has something to add…….

        In arguments before the Supreme Court this week, the Obama administration might have done just enough to keep the Affordable Care Act from being ruled unconstitutional. Those who believe in limited government had better hope so, at least.

        If Obamacare is struck down, the short-term implications are uncertain. Conservatives may be buoyed by an election-year victory; progressives may be energized by a ruling that looks more political than substantive. The long-term consequences, however, are obvious: Sooner or later, a much more far-reaching overhaul of the health-care system will be inevitable.

        To say the least, the three days of oral argument before the high court did not unfold the way many experts had expected. Confident predictions that the administration would prevail by a lopsided margin became inoperative as soon as the justices began pummeling Solicitor General Donald Verrilli with pointed questions.

        At one point Wednesday, as the barrage was winding down, Chief Justice John Roberts told Verrilli he could have an extra 15 minutes to argue a point. Verrilli replied, “Lucky me.”

        In the end, however, Verrilli gave the skeptical justices what they were looking for: a limiting principle that allows them, should they choose, to defer to Congress and uphold the law.

        At the heart of the legislation is the requirement that individuals purchase health insurance or pay a fine. It became clear by their questioning that the court’s five conservatives — including Justice Anthony Kennedy, the swing vote who sometimes crosses the ideological divide and votes with the liberals — see this mandate as a significant expansion of the federal government’s reach and authority.

        Verrilli argued that the mandate is permissible under the clause of the Constitution giving the government the power to regulate interstate commerce. Justices demanded a limiting principle: Where does this authority end? If the government can compel a citizen to buy health insurance, why can’t it compel the purchase of other things?

        Justice Antonin Scalia raised the specter of an all-powerful government that could even “make people buy broccoli” if it wished. Scalia’s mind seemed to be made up, but Kennedy seemed to be genuinely looking for a principle that permitted a health insurance mandate but not a broccoli mandate.

        And Verrilli gave him one. The market for health insurance is inseparable from the market for health care, he argued, and every citizen is a consumer of health care. Those who choose not to buy health insurance require health care anyway — often expensive care at hospital emergency rooms — and these costs are borne by the rest of us in the form of higher premiums.

        I think Verrilli made his case. The court is supposed to begin with the assumption that laws passed by Congress are constitutional. Justices don’t have to like the Affordable Care Act in order to decide that it should remain in effect. If some members of the court think they could do better, maybe they should quit and run for legislative office.

        But it’s going to be a close call. What if they strike down the law?

        The immediate impact will be the human toll. More than 30 million uninsured Americans who would have obtained coverage under Obamacare will be bereft. Other provisions of the law, such as forbidding insurance companies to deny coverage based on preexisting conditions and allowing young adults to remain on their parents’ policies, presumably would also be invalidated; if not, they would have to be modified to keep insurance rates from climbing sharply. The United States would remain the only wealthy industrialized country where getting sick can mean going bankrupt.

        Eventually, however, our health-care system will be restructured. It has to be. The current fee-for-service paradigm, with doctors and hospitals being paid through for-profit insurance companies, is needlessly inefficient and ruinously expensive.

        When people talk about out-of-control government spending, they’re really talking about rising medical costs that far outpace any conceivable rate of economic growth. The conservative solution — shift those costs to the consumer — is no solution at all.

        Our only choice is to try to hold the costs down. President Obama tried to make a start with a modest approach that works through the current system. If this doesn’t pass constitutional muster, the obvious alternative is to emulate other industrialized nations that deliver equal or better health-care outcomes for half the cost.

        I’m talking about a single-payer health-care system. If the Supreme Court strikes down Obamacare, a single-payer system will go from being politically impossible to being, in the long run, fiscally inevitable.

        http://www.washingtonpost.com/opinions/supreme-court-could-open-door-for-single-payer-health-care/2012/03/29/gIQAyNJtjS_story.html?hpid=z2

      13. Meta
        Posted April 2, 2012 at 11:46 am | Permalink

        E.J. Dionne Jr. in today’s Washington Post:

        Right before our eyes, American conservatism is becoming something very different from what it once was. Yet this transformation is happening by stealth because moderates are too afraid to acknowledge what all their senses tell them.

        Last week’s Supreme Court oral arguments on health care were the most dramatic example of how radical tea partyism has displaced mainstream conservative thinking. It’s not just that the law’s individual mandate was, until very recently, a conservative idea. Even conservative legal analysts were insisting it was impossible to imagine the court declaring the health-care mandate unconstitutional, given its past decisions.

        So imagine the shock when conservative justices repeatedly spouted views closely resembling the tweets and talking points issued by organizations of the sort funded by the Koch brothers. Don’t take it from me. Charles Fried, solicitor general for Ronald Reagan, told The Washington Post’s Ezra Klein that it was absurd for conservatives to pretend that the mandate created a market in health care. “The whole thing is just a canard that’s been invented by the tea party . . .,” Fried said, “and I was astonished to hear it coming out of the mouths of the people on that bench.”

        Staunchly conservative circuit judges Jeffrey Sutton and Laurence Silberman must have been equally astonished, since both argued that overturning the law would amount to judicial overreach. Yet moderate opinion bends over backward to act as if this is an intellectually close question.

        Similarly, House passage of Rep. Paul Ryan’s budget, with its steep cuts in the tax rates on the wealthy and sweeping reductions in programs for the poor, is an enormous step rightward from the budget policies of Ronald Reagan and George H.W. Bush. Faced with growing deficits, Reagan and Bush both supported substantial tax increases.

        A small hint of how this push to the right moves moderates away from moderation came in an effort last week to use an amendment on the House floor to force a vote on the deficit-reduction proposals offered by the commission headed by former Sen. Alan Simpson and Erskine Bowles, former chief of staff to Bill Clinton.

        You learned only in paragraphs buried deep in the news stories that the House was not even asked to consider the actual commission plan. To cobble together bipartisan support, sponsors of the ersatz Simpson-Bowles amendment kept all of the commission’s spending cuts but slashed the amount it prescribed for tax increases in half. See how relentless pressure from the right turns self-styled moderates into conservatives? If there’s a cave-in, it’s always to starboard.

        Note how many deficit hawks regularly trash President Obama for not endorsing Simpson-Bowles while they continue to praise Ryan — even though Ryan voted to kill the initiative when he was a member of the commission. Here again is the double standard that benefits conservatives, proving that, contrary to establishment opinion, Obama was absolutely right not to embrace the Simpson-Bowles framework. If he had, a moderately conservative proposal would suddenly have defined the “left wing” of the debate, just because Obama endorsed it.

        This is nuts. Yet mainstream journalism and mainstream moderates play right along.

        A brief look at history suggests how far to the right both the Republican Party and contemporary conservatism have moved. Today’s conservatives almost never invoke one of our most successful Republican presidents, Dwight D. Eisenhower, who gave us, among other things, federally guaranteed student loans and championed the interstate highway system.

        Even more revealing is what Robert A. Taft, the leader of the conservative forces who opposed Eisenhower’s nomination in 1952, had to say about government’s role in American life. “If the free enterprise system does not do its best to prevent hardship and poverty,” the Ohio Republican senator said in a 1945 speech, “it will find itself superseded by a less progressive system which does.” He urged Congress to “undertake to put a floor under essential things, to give all a minimum standard of decent living, and to all children a fair opportunity to get a start in life.”

        Who can doubt that today’s right would declare his day’s Mr. Republican and Mr. Conservative a socialist redistributionist?

        If our nation’s voters want to move government policy far to the right, they are entirely free to do so. But those who regard themselves as centrist have a moral obligation to make clear what the stakes are in the current debate. If supposed moderates refuse to call out the new conservatism for the radical creed it has become, their timidity will make them complicit in an intellectual coup they could have prevented.

      14. Meta
        Posted June 19, 2012 at 2:27 pm | Permalink

        According to Ezra Klein, the decision on Obamacare could come as early as Thursday.

        The Supreme Court could decide as soon as Thursday whether the federal government can require Americans to purchase private insurance coverage, a policy already in place in Massachusetts. So what can we learn from the Bay State’s experience?

        Over the course of five years, insurance coverage in the state has increased, premiums have decreased and virtually everyone has abided by the new requirement. While public opinion is favorable – two-thirds of Massachusetts residents support the law – the state does face challenges ensuring that the law is affordable.

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