Conservatives and liberals may disagree about the constitutionality of the individual mandate requiring all uninsured Americans to buy health insurance from private companies or pay a penalty to the IRS.
But there is no debate about whether single-payer Medicare For All would be constitutional. No one -- not even the most hard core, right-wing libertarians -- disputes that the federal government has the constitutional authority to tax all Americans to pay for Medicare-style health insurance for all, as it pays for Medicare for everyone over 65.
Indeed the Republican Attorney General of Louisiana, Buddy Caldwell -- who is one of the attorneys general opposing the Affordable Care Act ("ACA") in the Supreme Court -- is against the Individual Mandate because it props up the private health insurance agency and he prefers single payer. "Insurance companies are the absolute worst people to handle this kind of business," Caldwell said last week outside the Supreme Court. "If you have a hurricane come up the east coast, the first one that's going to leave when they gotta pay too many claims is an insurance company." Caldwell went on to endorse the idea of a government backed single-payer system as "a whole lot better" than mandating private insurance.
As a legal matter, the constitutionality of the individual mandate should not be a particularly difficult law to uphold unless a radical right-wing majority of the Supreme Court is prepared to upend 75 years of jurisprudence on the Commerce Clause.
But as a political matter, the enthusiastic support for the individual mandate by liberals and Democrats should trouble real liberals. Private health insurance is a defective product that often isn't there when people need it most. Even with government subsidies, the combination of premiums, deductibles and co-pays under the minimum policies required by the ACA could force many middle class Americans into medical bankruptcy or lead them to avoid preventive care and wait to see a doctor until they've become really sick.
Liberals should be troubled by the federal government forcing every uninsured American to buy a defective product from a for-profit health insurance company or be penalized by the IRS. Why do liberals want Uncle Sam to be the repo man for the likes of Aetna and United Health Care?
Think of it this way -- what if Mitt Romney, instead of John McCain, had been the Republican nominee in 2008, won the presidency, and proposed an individual mandate like he instituted in Massachusetts as national policy? My bet is that liberals and Democrats would have been jumping up and down screaming that it's coercive and unfair to force every American to buy a for-profit health insurance policies. It would likely have been progressive activists -- not Tea Party members -- who would have been showing up with picket signs at town meetings to oppose the individual mandate. As Howard Dean said of the individual mandate when President Obama was supporting it in 2009,
"This is not real reform. You're going to be forced to buy health insurance from a company that's going to take on average 27 percent of your money so they can pay CEOs 20 million dollars a year... and there's no choice about that. If you don't buy that insurance, you're going to get a fine. This is a bill that was fundamentally written by staffers who are friendly to the insurance industry, [endorsed] by Senators who take a lot of money from the insurance industry, and it's not health care reform. And I think it's too bad that it should come to this... I'd kill the bill entirely."
Barack Obama campaigned against Hillary Clinton's support of the individual mandate in the 2008 Democratic primaries, and that's one reason why many progressives -- myself included -- supported Obama over Clinton. Obama told Ellen DeGeneres,
"I don't think the problem is that people don't want health insurance. It's that they can't afford it... If things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn't."
So it's a supreme irony that once elected, Obama adopted the individual mandate as the heart of his proposed health care reform, particularly since it was a conservative Republican idea first proposed by the right-wing Heritage Foundation and supported by the likes of Newt Gingrich and Orin Hatch in the '90s. Suddenly it was liberals supporting the mandate, and conservatives -- who first proposed it -- now opposing it and denouncing it as an infringement of liberty.
Apparently, Obama miscalculated that, by adopting a conservative Republican idea of health care reform, he could get bipartisan support for the reform in Congress. Well, we all know how well that one worked out.
Moreover, to neutralize opposition from the for-profit health care industry, Obama cut back room deals with the special interests. He made a deal with the big Pharma lobby that Medicare wouldn't use its market power to negotiate for lower drug prices. And as I wrote at the time, he made a deal with the for-profit hospital lobby that the final legislation would not include a public option to compete with private health insurance, even as he was endorsing the public option to his liberal base. Moreover, Obama and congressional Democrats carried water for the private health insurance industry by promising them at least 30 million more paying customers through the Individual Mandate.
Of course, in the end, none of this got a single Republican vote for Obamacare, even though it was all but a carbon copy of Romneycare. And in the end, the bitter 18-month-long fight to pass the ACA in the middle of the worst recession in 50 years, combined the unpopularity of the individual mandate, was a major factor in the Republican victory in the 2010 congressional elections.
And while the ACA does some good things -- including letting young people stay on their parents' policies until they're 26, expanding Medicaid coverage, and eliminating pre-existing conditions -- it's a Rube Goldberg mess of social policy that will neither provide universal health care to all Americans, nor significantly bend the curve of health care costs which is bankrupting the country.
America's per capita health care costs are double those of other developed countries -- $7538 in America compared to $4079 in Canada, $3698 in France, $3737 in Germany, and $3129 in the UK. Yet citizens of those countries live on average two years longer than Americans.
Why the difference? Every other capitalist country has either single-payer systems paid for by taxes or a highly-regulated utility. America is the only capitalist country with a private profit-driven insurance system. With a multiplicity of payers, there's no single entity that can negotiate more efficient delivery systems and lower prices with medical providers.
It's a peculiar form of "American exceptionalism" in which only the US refuses to follow what's been proven to work in every other capitalist country. The ACA reinforces, rather than removes, America's wasteful for-profit health insurance industry and does little to bring American health care costs in line with those of other countries.
As I've recently written, if American health care costs continue to escalate at current rates, it will bankrupt individuals, companies and the government, leaving little choice but to adopt something like Paul Ryan's plan to shift a significant part of the cost of Medicare onto the backs of senior citizens. (You can find more on why America joining the rest of the capitalist world in a single-payer Medicare For All system is the only real solution to American health care in the 6-part series I previously wrote in the Huffington Post entitled "Why Not Single Payer" here.)
That said, whether or not the ACA represents the best policy or adequately solves America's health care crisis, its constitutionality should not be even a close question.
Ever since the New Deal, the Supreme Court has refused to second-guess economic regulations passed by Congress and has held that Congress needs only a "rational basis" to conclude that the subject matter of its regulation constitutes Interstate Commerce in order to be upheld.
In 1942 in the case of Wickard v Filburn, the Supreme Court found that Congress could regulate a farmer's production of wheat even for his own consumption because it would mean he might buy less wheat in the open market which could affect Interstate Commerce.
In 2005 in Gonzales v Raich, the Supreme Court held that even though medical marijuana is legal in California, a California resident growing 6 pot plants for her own medicinal use could be held liable under federal drug laws. Justice Scalia went out of his way to write a concurring opinion in support of the federal government regulating personal in-state medic al marijuana use under the Commerce Clause. If Scalia now votes that the ACA violates the Commerce Clause, it would be hard to conclude that this is anything but a political decision based on his personal biases about marijuana and government-regulated health care.
As to spurious distinction between economic "activity" and "inactivity, in the 1964 case of Heart of Atlanta Motel v. United States, the Supreme Court ruled that a local motel owner could not refuse to rent rooms to black patrons, as required by the Civil Rights Act. Refusing to rent a motel room is inactivity, but the Court held that that the federal government could compel the motel owner in to engage in the activity of renting to black patrons.
Thus Justice Kennedy -- the likely swing vote on the ACA -- had it exactly backwards when he suggested that the federal government had a "heavy burden" to justify the Act. According to long-standing Supreme Court precedent, it only needs to show a "rational basis" for Congress passing the Act. The "heavy burden" is on those challenging the Act.
If 5 Republican justices overturn the ACA, it will be hard to conclude that it's anything other than politics, not legal precedent, that is motivating their decision. When coupled with Bush v. Gore and Citizens United, it would pose the very real danger that 5 unelected right-wing Justices with lifetime tenure will be taking it upon themselves to determine who holds political office and what policies they may pursue.
Despite the flaws of the ACA, it would be a dark day for American democracy.
From the standpoint of constitutional law, overturning the ACA could, for the first time since the Great Depression, put dangerous constitutional restraints on Congress's ability to forge national solutions to national economic problems. That's a dangerous precedent that goes far beyond health care policy.
From the standpoint of presidential politics, if the Supreme Court overturns all or a significant part of the ACA, it could be a back-door version of Bush v. Gore which, by challenging the very legitimacy of President Obama's signature legislative achievement, empowers the Republican argument that Obama is a foreign-inspired socialist attempting to take away American liberty, and makes it more likely that in a closely-fought election, the Supreme Court will put Mitt Romney in the White House as it did with George W. Bush
But purely from the standpoint of insuring quality and affordable health care to all Americans, if the Supreme Court rejects the individual mandate, it would leave single-payer Medicare For All as the only viable and constitutionally permissible alternative to provide affordable health care for all Americans
In light of this week's oral arguments, which seem to indicate a distinct possibility that the Supreme Court will overturn the individual mandate, if not the entire ACA, the Obama administration needs to do some serious contingency planning.
If a 5-4 conservative Supreme Court majority throws out the ACA, President Obama can either retreat on health care with his tail between his legs and some perfunctory rhetorical denunciations of an activist conservative Supreme Court. Or he can take the offensive and run an aggressive campaign to reclaim the long-term ideal of Medicare For All, which he once supported as a little-known state senator from Illinois.