Would single-payer healthcare be less vulnerable to the court than the ACA?

By Jeff Greenfield for Yahoo News

If the Supreme Court does decide to strike down any or all of the Affordable Health Care Act, the implications will range from the political to the medical to the economic.

For me, such a decision will take its place among the more supremely ironic of unintended consequences: a law designed to avoid greater government intrusion into health care will have been invalidated as an unconstitutional overreach of government power, while a far more intrusive approach would have clearly passed muster.

How could this be possible? Welcome to the wonderful world of constitutional interpretation.

Let’s begin by imagining that Congress and the president decided to adopt a genuinely radical health care plan—the kind in place in most of the industrialized world. They decide on a “single-payer” system, where the government raises revenue with taxes, and pays the doctor, hospital and lab bills for just about everyone.

Put aside the question of whether this is a good idea, or an economically sustainable notion. The question is: would such a law be constitutional?

The answer, unquestionably, is “yes.” In fact, it would be the simplest law in the world to enact. All the Congress would need to do is to take the Medicare law and strike out the words “over 65.” Why is it constitutional? For the same reason Medicare and Social Security are: the taxing power. Its reach is immense. During World War II, the maximum income tax rate was 91 per cent (it was paid by few, thanks to loopholes, but still). The same Congress that could abolish the estate tax could set just about whatever limit it chose; it could impose a 100 percent tax on estates over, say, $5 million. If it decided that a national sales tax was an answer to huge budget deficits, it could impose one at whatever level it chose.

(The remedy, of course, lies with the voters, who would be more than likely to send a powerful message at the next election, which is why the lack of constitutional limits on the taxing power do not lead to confiscatory rates.)

So why is Obama’s health care plan, with a far more modest use of government power, in serious jeopardy? It’s because the key element in the plan—the “mandate” to purchase health insurance or pay a penalty—was not based on the taxing power, but on Congress’s power, under Article I, Section 8, to regulate interstate commerce. And that power, while broad, has its limits…even if those limits are murky.

Up until the late 1930s, those limits were more like shackles. The Supreme Court repeatedly struck down sate and federal laws regulating wages, hours and working conditions on the grounds that the commerce power only touched the distribution of goods, not their manufacture. But once the court changed its mind—after an effort by FDR to “pack” the court with additional justices had failed—there seemed to be no limits at all. Back in 1942, the court said the government could stop a farmer from growing his own wheat for his own use, because of the potential effects on the wider market. But in 1995, for the first time in decades, the court said “no” to a federal law based on the Commerce clause—one banning firearms within school zones—because it could find no reasonable connection between the law and interstate commerce.

In the health care case, the questioning by several justices indicated strong skepticism about the mandate. If the commerce clause can compel a citizen to buy a specific product—in this case, health insurance—what couldn’t it do? Could it, as the now famous question had it, compel citizens to buy broccoli on health grounds? (Well, a defender might have pointed out, the government does compel taxpayers to “pay for” all kinds of things in the form of government subsidies, such as ethanol. It could clearly do the same with a broccoli subsidy.)

As a policy matter, it’s clear that a “mandate” is a much more modest extension of government power than a single-payer system. The citizen would choose which insurance to buy; in fact, under the law, a citizen could choose not to buy any insurance, and pay a penalty instead. The whole premise of a mandate is to spread risk as widely as possible; as Mitt Romney used to note when he was defending the Massachusetts plan he designed, the mandate to prevent “free riders” from benefitting from treatment once they are sick or injured. That’s why the genesis of the idea came from such conservative roots as the Heritage Foundation.

As a constitutional matter, however, the idea of compelling a citizen into a specific economic activity raises alarm bells. It evokes the specter of some bureaucrat inviting himself into your home, while checking the shelves to make sure you’ve purchased multigrain cereal and cage-free eggs. (It’s a specter the administration tried to avoid by arguing that the health-care market is unique, one in which we are all likely participants at some point, voluntarily or otherwise. Unlike life in a Robert Heinlien libertarian “utopia,” hospital ERs do not have the power to say to an uninsured heart attack or auto accident victim: “you chose not to buy insurance? Sorry…have a nice day.”)

So, for its effort to design a health care plan that moved in the direction of less government intrusion, the Obama administration faces the distinct prospect of having its signature domestic program shot down for exceeding the limits of the constitutional power it did choose to use.

I somehow doubt the White House will appreciate the irony.


  1. Richard Johnston on June 12, 2012 at 4:45 pm

    What a dope. Where were you when they debated it, Jeff? President Obama was forced by Republicans to opt for the second-choice mandate over a single-payer system to appease the insurance companies. He made a pact with the devil and may regret it. He would have chosen the latter if he could have gotten it. It is not “irony,” Jeff, it is a sad acknowledgment of the power of special interests.

    • leftover on June 12, 2012 at 6:12 pm

      The Republicans didn’t force Obama to opt for anything over Single Payer. It was Baucus, Obama’s choice to pen the ACA, who threw Single Payer advocates in jail…TWICE…just for wanting to be part of the “debate.” Obama took Single Payer off the table all by himself.

      If the “public option” is what you’re referring to by “second choice mandate,” that was always a bait-and-switch scam perpetrated by the Democrats (with Jacob Hacker) to create the illusion Obama was doing “all he could do” to appease the two-thirds of Americans who supported then and continue to support Single Payer. We were cheated, scammed, bamboozled…by Obama, and spineless Democrats addicted to insurance industry pay-offs.

      Obama made his deal with the devil all right…the for-profit commercial healthcare industry devil. He’s a neoliberal opportunist and political scoundrel who knows he’s got progressives in this country by the testicles. I hope he loses. The worse things get, the quicker things will change…really change.

  2. Jane1944 on June 12, 2012 at 11:34 pm

    Leftover said it superbly well, thank you.

    I wonder whether the problem with the ACA in Mr. Greenfield’s complicated analysis is that the mandate is an “extension of government power” or is it the fact that the mandate is an extension of CORPORATE power? At least the latter is a problem for me. To require every adult in America under 65 to buy an inferior profit-priority health insurance product with little or no premium price controls strikes me as disaster-seeking, unfair, dumb, and, well, I’m at a loss for words. It’s corporate greedy. Liz Fowler, a Wellpoint VP before becoming Sen Baucus’s chief of staff largely WROTE the ACA so the corporate fingerprints and footprints are clear (http://tinyurl.com/d474j7o). Then Obama appointed Fowler to implement ACA from the White House (http://tinyurl.com/2efxu23). Talk about slick. (Is she still implementing ACA or did she retire to the South of France?)

    Obama was treacherous about the public option; he kept promoting the PO months after he traded it away in his WH backroom deal — that was breathtaking! Wow! (http://tinyurl.com/qo2uya). What an operator!

    Single payer is the way to go. We got the initial scheme through the CA legislature twice under Arnold (with virtually NO news coverage) before his corrupt pen vetoed it. Now CA Dems and Gov Brown are running scared not to go to bat for a single payer SP third wave bill in part because they fear it might reflect badly on Obama to have SP come up the outside track in the largest state in the union. That’s just someone’s theory (and it assumes O wins the election), but Gov Brown is not being smart fending off SP since his state would save a fortune by going for single payer — and he needs the money badly (All the states do. I’ve since moved to PA where we have a SP bill somewhat weakly pending).

    The main question about SP before the Court is the nature of its own mandate, as it requires one (like Medicare for All). If Medicare survived SC muster, then that’s single payer. This is why I’m not against the concept of a mandate per se (or whatever one calls “everybody in, nobody out”). I’m against forced-buy of a corporate profit insurance product foisted on middle and working classes with no firm price controls on premiums (See a good diary on the ACA premium control problem here: http://fdlaction.firedoglake.com/2012/05/09/acas-much-touted-health-insurance-premium-review-is-basically-useless/). I don’t want the German system, either, since US has been utterly spoiled by Tea Party and other weirdos against any form of regulation. So yes, I believe a well designed SP system (like we did twice in CA legislature) would be far more fair and far less vulnerable before the Court.

  3. Lee Einer on June 19, 2012 at 9:13 am

    “The whole premise of a mandate is to spread risk as widely as possible”

    Yeah, Obamacare’s mandate would not accomplish this in any meaningful way, because the fragmentation of healthcare financing structure is exactly what Obamacare preserves. Those who would be buying under the mandate would generally be buying into employer groups, in which the risk pool is limited by the size of the employer’s pool of eligible employees, or into individual policies in which there never was nor will be any legitimate sharing of risk. So there is nothing here which would expand risk and thereby drive down cost to the consumer.

    Epic Fail.

    You want maximum risk sharing, go for single-payor, universal coverage.

  4. Jim Miles on June 26, 2012 at 9:09 am


    I love the contrast between the commentors here (intelligent, evidence-based) vs those at the original site of J. Greenfield’s article (appropriately called “Yahoo”, where you’ll find terms like “fktard” and “moron” tossed about).

    Moreover, I think the contrast is instructive. I know so many of my own friends stick with the pre-digested mainstream “news” sources like pundit opinion columns, Fox and Friends, and even the Daily Show, which for all it’s comedic genius and serious topic selections still makes it too easy for people to feel as if they’ve been informed of facts after viewing it.

    Since I’ve delved into more original reporting and research-based sites, it’s become easier to come to conclusions that make sense to me.

    My $0.02.