President Obama’s signature health care reform law is now at the mercy of the U.S. Supreme Court, where the justices will make their final ruling in private on Friday after several days of often contentious hearings.
The Court’s official verdict on whether or not the “Affordable Care Act” is constitutional will not be known publicly until June at the earliest, but debate over how the justices will come down on the president’s single most prominent legislative achievement during his first term in office has been heated, with many observers predicting that health care reform will be struck down.
The most conservative Supreme Court in decades is now charged with the power to uphold the sweeping national health care law that is advertised as a cost-cutting measure aimed at expanding insurance coverage, or whether the means the Obama administration employed to achieve that — namely the individual mandate requiring every citizen to purchase health insurance — is unconstitutional and classic government overreach.
Initial readings of how the Court may come down on health care have the White House worried. Conventional wisdom has shifted to a point where it is seen as likely that the mandate will be ruled unconstitutional, as justices in the conservative majority peppered the administration’s lawyer defending the Affordable Care Act with skeptical questions pertaining to whether the structure of a mandate was an overreach of government authority.
With the mandate almost certain to go down, the question then turns to the rest of the law. The entire facade of health care reform as carried out by President Obama may be in jeopardy if the Court rules the individual mandate unconstitutional and concludes that the viability of the rest of the law is so closely tied to the mandate that the entire package will be struck down.
The day after the Supreme Court suggested that President Obama’s health care law might be in danger of being held unconstitutional, the justices on Wednesday turned their attention to the practical consequences and political realities of such a ruling.
The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law’s expansion of theMedicaid program constitutional?
The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law. One justice dipped into Senate vote counting.
The court had in other words, on the third and final day of a historic set of arguments, moved from the high theory of constitutional interpretation to the real-world consequences of what various rulings would entail.
As the Supreme Court picks apart the inner workings of Obama’s health care reform that make it a functioning entity, the most startling “real-world consequence” of a potential ruling against the health care law may be the immediate rise of universal single-payer as the only natural — and legal — successor to “Obamacare.”
While Democrats and the White House wring their hands over the stunning turn of events that has their signature domestic accomplishment on the ropes of constitutionality, progressives, health care providers and the other numerous proponents of a single-payer health care system are cheering what could be the most breathtaking ramification of a Court ruling against the Affordable Care Act.
Single-payer supporters are fighting the urge to say “I told you so” to President Obama. As soon as the newly elected president placed health care at the top of his legislative agenda in 2009, progressives had lobbied the president for a single-payer universal system as the only effective way of covering every American and bringing down costs.
And though the main argument on behalf of single-payer at the time was one of policy and not of legality, the proposals for how single-payer would be implemented answered any constitutional questions. “Medicare for all” was the most common form of single-payer system that had been put forward, and since the legality of Medicare has never been in question, most believed a universal system based on that model would easily hold up to legal scrutiny.
Even Obama’s own doctor came out against what was the administration’s finished product on health care reform, a “free market” amalgamation of ideas that kept the burden of insurance on employers and businesses, protected the profits of insurance companies, and fashioned the individual mandate as a means to make sure nearly all Americans had health insurance.
Three years later, the decision by the White House to embrace a virtual status quo “reform” at the expense of a single universal system is coming back to haunt the president. Ironically, the destruction of “Obamacare” could lead to single-payer as being the administration’s only option to salvage their legacy on health care.
If Democrats had created a simple, straight forward single payer system or merely provided the uninsured with a default public insurance program, the constitutionality of health care reform would likely never have gotten to the Supreme Court.
But could there be a second chance for single-payer as the future of American health care?
During the same debate that was putting gaping holes in the question of the individual mandate’s constitutionality, justices on the Court were tipping their hand that a robust government-run, single payer system could in fact be a more constitutional alternative to the mandate-dependent ”free market” course chosen by President Obama and congressional Democrats.
Conservatives have spent the last few years falsely characterizing the Affordable Care Act, which preserves the private insurance system, as a “government takeover of health care.” Yet during oral arguments, a lead lawyer opposing Obamacare as unconstitutional suggested an actual government takeover of health care might be constitutional.
In an exchange between Justice Sonia Sotomayor and Michael Carvin—a lawyer representing the National Federation of Independent Businesses, which opposes Obamacare—Sotomayor got Carvin to concede that a single-payer system would be constitutional:
JUSTICE SOTOMAYOR: So the—I—I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is–
JUSTICE SOTOMAYOR: Okay.
Justice Ruth Bader Ginsburg had previously attempted to trap former Solicitor General Paul Clement into saying the same thing. “It seems to me you’re saying the only way that could be done is if the government does it itself; it can’t involve the private market, it can’t involve the private insurers,” Ginsburg said. “There has to be government takeover. We can’t have the insurance industry in it. Is that your position?”
Justice Anthony Kennedy wondered aloud whether the ability of the government to set up a single-payer system meant that the Affordable Care Act was constitutional. “Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer,” Kennedy said. “In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.”
So the silver-lining to anyone pained by the seemingly imminent death of 2009′s health care reform law is that it could engender the rise of single-payer as the most legal and effective option for a national health care overhaul.
But how would that happen? Passing the industry-friendly “Affordable Care Act” was a monumental legislative battle, with moderate lawmakers only signing on after a host of concessions that made a flawed bill even more worthless as a means of implementing effective health care reform. A true government-run system — “Medicare for all” — couldn’t possibly gain enough support in an even more conservative Congress to become reality.
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. This is exactly what former Labor Secretary Robert Reich argued in the Huffington Post today:
With a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system — Medicare for all.
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.
While the fate of health care remains up in the air, the fact that our current health care system is broken remains starkly clear. Even with the implementation of health care reform in 2009, the number of uninsured Americans are continuing to hit record highs, with minorities facing the brunt of the crisis.
Over 50 million people still lack health insurance, and a Gallup study found a record percentage of Americans without insurance in 2011.
While young adults were helped by provisions in “Obamacare” expanding their access to insurance, most citizens are continuing to face a crisis in health care costs and coverage as they trade good jobs lost in the recession for more basic employment, and more employers drop benefits entirely.
The U.S. health insurance system is undergoing great upheaval, which combined with the troubled economy of the past several years is clearly affecting health insurance coverage in the country. The Gallup-Healthways Well-Being Index data reveal that more Americans lack healthcare today than did four years ago. Groups that were already among the least likely to have coverage — Hispanics, low-income Americans, and blacks — have become even more likely to be uninsured. Meanwhile, seniors, most of whom qualify for Medicare, and high-income Americans not only remain among the least likely to lack coverage, but also have not seen their access decline in recent years.
The clear outlier is young adults. The percentage of Americans aged 18 to 25 who are uninsured has been declining since the fourth quarter of 2010. This decrease has coincided with the implementation of a provision of the new healthcare law that allows this age group to stay on their parents’ plans.