Can We Have Health Reform Without an Individual Mandate?

Yes, It’s Called ‘Medicare for All’

By John Nichols for The Nation

The essential vote on the 11th Circuit Court of Appeals panel that ruled that the individual-coverage mandate in President Obama’s healthcare reform is unconstitutional did not come from a reactionary Republican appointed by Ronald Reagan or George W. Bush.

Rather, it came from a respected jurist whose two appointments to the federal bench—first as a judge for the Northern District of Georgia in 1994 and then to the 11th Circuit in 1997—were made by then-President Bill Clinton. No, Judge Frank Mays Hull is not a raging lefty, but nor is she a right-wing judicial activist. A former law clerk for Judge Elbert Parr Tuttle, who as the chief justice of the US Court of Appeals for the Fifth Circuit from 1960 to 1967 led the court in issuing a series of epic decisions on behalf of civil rights, Judge Hull has a reputation as a moderate defender of the rule of law who has earned reasonable marks for her pragmatic and decidely mainstream interpretations of the Constitution.

So why did Hull join with another member of the appeals court panel (Chief Judge Joel Dubina, an appointee of George H.W. Bush) to form the 2-1 majority that rejected the individual mandate while affirming the rest of the law? Perhaps it was because one can favor sweeping healthcare reforms—including an expansion of Medicare—while still believing that it is wrong to require Americans to buy insurance from for-profit insurance companies.

Hull telegraphed her thinking with repeated questions during June oral arguments in Atlanta regarding the case. Noting that “the panel spent a significant amount of time discussing whether the mandate is ‘severable’ from the rest of the law,” Politico pointed out that: “Hull in particular asked the federal government three times where the line should be.”

Ultimately, Hull and Dubina came to the conclusion that the individual mandate could, and should, be removed from an otherwise constitutional plan.

Why? Because, as the judges wrote in their majority decision: “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”

Those of us who favor fundamental healthcare reform have always been uncomfortable with the individual mandate. So was candidate Barack Obama, who distinguished himself from Hillary Clinton (a mandate backer) by saying in a February 2008, interview: “Both of us want to provide health care to all Americans. There’s a slight difference, and her plan is a good one. But, she mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”

Candidate Obama was right.

The individual mandate was always a bad idea. Instead of recognizing that healthcare is a right, the members of Congress and the Obama administration who cobbled together the healthcare reform plan created a mandate that maintains the abuses and the expenses of for-profit insurance companies—and actually rewards those insurance companies with a guarantee of federal money.

Those who think that the for-profit (or even not-for-profit) insurance industry has to control any healthcare reform initiative have every right to be upset with the 11th Circuit’s ruling—which almost certainly will send the case of the Obama healthcare plan to the US Supreme Court.

But those of us who have no desire to perpetuate the insurance industry can and should recognize that the proper—and entirely constitutional—reform is an expansion of Medicare to cover all Americans.

There is no question that Medicare is a sound and popular program. (Just ask House Budget Committee chair Paul Ryan, R-Wisconsin, who took an epic political beating when he proposed a scheme to replace the successful single-payer system with a voucher scheme designed to enrich insurance firms.)

While Medicare is exceptionally popular, polling shows that the individual mandate is not—according to recent surveys, roughly 60 percent of Americans oppose it.

It also passes constitutional muster.

As former Labor Secretary Robert Reich notes: “[No] federal judge has struck down Social Security or Medicare as being an unconstitutional requirement that Americans buy something. Social Security and Medicare aren’t broccoli or asparagus. They’re as American as hot dogs and apple pie.”

“So if the individual mandate to buy private health insurance gets struck down by the Supreme Court or killed off by Congress,” says Reich, “I’d recommend President Obama immediately propose what he should have proposed in the beginning — universal health care based on Medicare for all, financed by payroll taxes.”

The insurance companies would, of course, scream.

But let them complain.

Americans don’t need mandates. They need healthcare.

And they have every right to ask, as activists with Physicians for a National Health Program have, that Medicare be expanded to cover all Americans–affordably, efficiently, capably and constitutionally.


  1. Scott James on August 16, 2011 at 2:10 pm

    hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
    Right there. Do you see it? We have the right to life. And if the government says our life must be paid for in order to continue the pursuit of happiness, then it is destructive, and it is the right of the people to alter that in favor of a system that supports safety and happiness.

  2. Gerald Weinand on August 22, 2011 at 9:52 am

    Back in July 2009, this blogger (and supporter of H.R. 676) asked President Obama about the individual mandate, and his answer went viral:

    • Zeus Yiamouyiannis on August 26, 2011 at 4:53 am

      Not familiar with a particular passage in a nearly 1000 page document? Ohh that’s cutting edge journalism there. And you interpreted Obama’s response in tune with an unverfied assertion that this particular passage would outlaw private insurance: “Investors Business Daily article that claimed Section 102 of the House health legislation would outlaw private insurance.” This source is an ideological rag built around pushing the debate in favor of corporations by using scare tactics on gullible readers. The same one dismisses global warming outright. Anything that would get in the way of corporate profits, this rag is opposed to. Check your sources.

  3. Chris Lowe on August 25, 2011 at 11:35 am

    There is an opportunity to weigh in on this in (and to) the New York Times.

    Dr. Sam Metz of Portland, Oregon (PNHP/Mad as Hell Doctors) had a letter published in the Aug 23 NYT on single payer vs. individual mandate. It has been made the focus of a “Sunday Dialoge” for this coming Sunday August 28.

    You can see Sam’s letter here:

    Responses are to be e-mailed to

  4. Thanks again, Honest Liberal, for your additional input (“What are you, a Sham-Wow infomercial?”)

    No, I don’t advertise the Shamwow ( I had never heard of it. But, now that I know about it, I know that you are referring to a powerful product that gives great end results.

    Yes, that’s what I do (

    As you might have noticed, one of my most important points was cut off, but I’m sure you’ll want to catch the next critical segment of the infomercial …
    … JOBS … JOBS … JOBS … JOBS … JOBS …

    We will enjoy the SHARP rise in job opportunities in the United States. [A dramatic lowering of health care costs will cause our labor costs to be much more competitive with the rest of the world!]

    Just like the Samwow: great product with great results.

    Go here for more infomercial content:

    – Bob the Health and Health Care Advocate

    • FYI —- I should not have included any reference to shamwow. Some people think it’s a poor product and that the operation of that promotion and associated sale(s) of the product is a big scam.

  5. OOPS …. that was a copy of my 3rd post at The Nation article. To see the other two, go there.
    – Bob

  6. Jane on August 25, 2011 at 2:52 pm

    ….it is the right of the people to alter that (government) in favor of a system that supports safety and happiness.

    Interesting. Certainly a few of us are safe and happy, most of us are not and it would seem almost as if a few gain thier safety and happiness by denying the same to the rest.

  7. Terry on August 26, 2011 at 8:30 am

    Is it wrong to force people to buy car insurance from private companies?

    • Dave C on August 28, 2011 at 4:15 pm

      Good point Terry! It is mandatory to have auto insurance, why not health insurance? I hope that whomever is defending the bill is using this line of reasoning. Perhaps one difference is that not everyone has a car so, if you don’t want to buy car insurance, don’t buy a car.

    • Jill Friedman on September 1, 2011 at 11:20 pm

      The 2-car insurance and health insurance- have nothing in common. Car insurance is part of the cost of owning a car and driving it, along with purchase, maintainance, repairs, fuel and registration. Its cost is limited because it serves a limited purpose: to reimbirse others who are harmed or have property damage in accidents caused by the driver of that car. No-fault car insurance also pays for health care needed only as a result of accidents involving that car.

      Health care is prohibitively expensive, is needed by everyone, and insurance companies often refuse to pay for care in spite of collecting these huge, expensive payments on an ongoing basis. Car insurance is affordable because the probability of accidents is low and the resulting expenses relatively small. Health care is needed by everyone, throughout their entire lives, so insurance is not an affordable or practical way to provide it. Medicare for all is the best solution and the U.S. can certainly afford it.

  8. Mairi on August 26, 2011 at 12:29 pm

    Go Bad Samaritans! Any of these folks exercising their “individual rights not to be insured” can be left to bleed to death in car crashes. We will turn them away from ER. That’ll show them what it means to be free! I’m SURE that’s what the “Founding Fathers” would have wanted…

    • Maurice Raffoul on August 27, 2011 at 7:06 am

      The problem is the medical field it self, why should anyone need insurance, out law it and make people pay cash like in 97% of the world if you dont have the money you die period, do you want socialized medicine like canada, tough we dont have anymore money for medicare or medicaid, or any of this stuff, period, also look how much more US doctors make than other countries doctors google it, it is because they are getting paid form medicare and medicaid. Here i am in my early 30’s making less than when i graduated form college in 2003, the only people whos pay goes up are medical people and government workers, who are not in the free market at all i work for grocery store chain in accounting, i am currently paying 20% of my gross pay for health insurance, that is bull shit you in the medical profession realize your job is similar to that of a teacher you should not be in it for the money. You over paid diaper changers,
      I know most of you nurses can’t do shit, never met a deadline of payroll, you guys keep raping the country and young productive people like me will leave, also it should be against the law to sue a doctor, in europe you cant sue a doctor if he messes up.

  9. Elizabeth Sheppard on August 26, 2011 at 3:28 pm

    If Obama wants to get reelected, he better take John Nichols advice! ASAP!

    • No kidding. I don’t understand all the complaining of some individual (and some groups of) Progressives about Barack Obama doing the wrong things, even to the point of recently declaring their non-support if he suggests cuts to Medicare and Medicaid. If the majority of Progressives want a 2013 through 2016 president to be named Barack Obama or other Democrat as president, then they’d better get on board fast and solidly with the education and communications campaign (Million Letters for Health Care). Because the Affordable Care Act of 2010 is very very bad, as clearly seen in a side-by-side comparison ( He told us in April 2007 what to do and we never took him up on his suggestion. His campaign manager told us what works in September 2010. We’re not doing that either. We’ll have a chance to change this situation in the coming weeks/months (

      – Bob the Health and Health Care Advocate

      P.S. If you want to know about my references to April 2007 and September 2010, let me know. For now, I must get back to work, along with all those who are helping me from around the country. (If you want to help, let me know, since we could use you.)

  10. Brett on August 27, 2011 at 2:07 pm

    I strongly support “Medicare for All” but I admit, I am completely baffled by the line about broccoli and asparagus.