Friday, April 11, 2014

Would Single-Payer Have Been Free of Constitutional Challenges? Not Likely

-- Posted by Neil H. Buchanan

Yesterday, in my Verdict column and here on Dorf on Law, I argued that now is the time to push for a single-payer national health care plan, one version of which is Medicare for All, which would simply expand the covered population of the popular Medicare program from over-65-year-olds to everyone, regardless of age.

The first-year enrollment numbers in the ACA's new health care exchanges -- the much-touted 7.1 million, which met and exceeded the (somewhat arbitrary) 7 million target -- were significant because that was the last moment at which the system could have simply failed on its own terms.  That is, we have already seen the implementation of certain aspects of the law, such as the (very, very popular) inclusion of children up to age 26 on their parents' policies.  Such features could have been repealed, as a technical matter, without destroying the law itself.

The only question would have been the politics: If Republicans had decided not to "repeal Obamacare," but instead had tried to repeal certain features of the law, would the public have let them do it?  Almost certainly not.  There is a reason that Republicans continued to talk about the law in the abstract, and focused on things like the "mandate."  They were getting no political traction for undoing the substance of what the law was trying to do.

If the early enrollments had been too low, however, that would have changed everything.  Something like a death spiral would have begun, with insurance companies needing to increase their rates and reduce their offerings, which would have caused some people to drop out and others not to sign up, which would have led to still higher rates, and so on.  We now know that the system reached critical mass.  There are still plenty of things that can go wrong, and plenty of poison pills that the Republicans could try to sneak through.  But this is a "live birth," and the wrangling that will follow is mostly about details.

One fly in that ointment is a case called Halbig v. Sebelius, which was recently argued before the DC Circuit.  There, a Koch-backed legal team is trying to exploit a supposed gap in the statute that purportedly makes it illegal for the government to offer subsidies to people who buy their insurance through exchanges that the federal government has set up.  Because the federal government only sets up exchanges after a state (with a Republican governor) refuses to do so, this case could hang on (among other things) whether the appellate court -- and ultimately the Supremes -- interprets the law such that federally-built exchanges can be deemed surrogate action on behalf of the state governments.  A ruling against the Administration could effectively negate a large number of enrollments, and thus put us back in danger of a death spiral.

Of course, no such challenge could have been possible had we adopted national single-payer.  This lawsuit, like the other major challenges to the ACA, is possible entirely because the law has so many unnecessary moving parts, which can be challenged from many different angles.  For example, the famed NFIB v. Sebelius case, under which C.J. Roberts allowed the "mandate" under Congress's taxing power, would not have happened had there been no mandate to challenge.  And the mandate itself was necessary to allow a system built around private insurance companies to provide nearly-universal coverage.

Similarly, the Hobby Lobby case, which challenges Congress's authority to order corporations to provide health care with features that upset the corporations' major shareholders (such as the ACA's requirement that all policies provide birth control without a co-pay), has constitutional resonance only because the ACA continues to be built around employer-provided health insurance.  (This historical accident might be the "original sin" of our health care system, because it creates "job lock" and other unnecessary problems.)

It is tempting, therefore, to think that an additional "cost" of going for a half-measure like the ACA, rather than going for national single-payer in 2010, has been that we have been left to deal with these unnecessary nuisance suits.  Medicare is hitting its 50th birthday, and it is not open to Constitutional challenge.  Yes, as some readers discussed in the Comments on my post yesterday, culture wars politics would affect Congress's decisions about what to include in expanded medical coverage.  That would be a matter of pure politics, and some of it might not go well, but it is arguably better to hash that out in Congress rather than through this series of ridiculous lawsuits.

Or so I wanted to think.  Honestly, however, it is hard to imagine that the people who have been pushing these anti-ACA lawsuits would have said, "Oh well, I guess there's nothing we can do about single-payer.  Medicare is bulletproof."  I mean, consider just how absurd the activity/inactivity distinction was -- not just to liberals, but to conservative legal scholars as well -- when it was first raised in NFIB v. Sebelius.

If these people could imagine getting five justices to sign onto that incoherent mess, why would they not imagine that other legal doctrines could be invented to declare that, say, Medicare is a violation of property rights, or that payroll taxes are theft?  There is already a strong contingent of people, some of whom were put on the federal bench by George W. Bush, who want to revive the Lochner era's expansive version of freedom of contract.  Why would they not use expanded Medicare as the wedge to push that agenda?

So, even though the economic costs of the ACA, relative to single-payer, are unbelievably high, I no longer think that the parade of bad constitutional challenges was an additional cost of adopting the go-it-slow strategy.  Motivated, well-funded people with friends on high courts will always try to use whatever raw material is available.