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.
…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health insurance companies from denying coverage to people with pre-existing conditions would almost certainly be repealed.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…
…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?