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  Such features could have been repealed, as a technical matter, without destroying the law itself.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.


  1. Anonymous1:45 PM

    "who want to revive the Lochner era's expansive version of freedom of contract."

    This is my great fear. There is a group of people who would rather destroy society than give in to what they perceive as "tyranny". In the abstract I might even agree with this group but I disagree that anything that we have in America today when it comes to social policy is "tyranny" unless on considers the NSA to be a social program. Universal health care isn't tyranny, it isn't anything that resembles what the founders would have viewed as tyranny--such as taxation without representation--and other countries have universal health care and show no danger of being tyrants.

    In my own view the big picture works like this. (a) concentrate the wealth in as few hands as possible. (b) divide and conquer the opposition under the rhetoric of freedom. The legal necessity for that strategy to work is a revival of Lochner in some form.

  2. You might want to check out the version of the "Halbig" attack by Indiana's attorney general. Indiana v. IRS, 1:13-cv-1612 (S.D. Ind.) In the recent briefing, the attack on the premium subsidy (IRC §36B) has been pretty much left to the co-plaintiff school districts, in their employer capacity, much as the employer-plaintiffs in Halbig: citing the link between an employee getting a 36B credit and the IRC §4980H tax ("employer mandate") on the employer.

    The State (its AG) expends his briefing space instead on a frontal attack on Garcia - to bar the 4980H tax altogether as to State-employers. So not a return to Lochner, but to the Nat'l League of Cities doctrine of "state rights." And his rhetoric is steeped in throwback to a pre-Civil-War America.

    While Garcia has not been overruled, they suggest it's no longer good law: "time has set its face against [Garcia]" you might say, citing the weak-USA cases of Lopez, Morrison and part of NFIB, and (somehow) the recent Bond case.

  3. Whilst I tend to enjoy Mssr. Buchanan’s entries without complaint and I certainly agree a push for “Medicare, Part ‘E’, as in ‘Everyone’” should, if not ‘must’, come and come soon, this entry is one of those times I must disagree on a few points.

    While Critics of the ACA definitely get no “traction” by arguing against specific pieces of the law, I see little reason why one legal team is “Koch-backed” makes any difference regarding the merits of the arguments placed before the court. The logical soundness of the particular arguments raised in Halbig would be just the same if the arguments were raised by a Koch-backed team, an ACLU-backed team, an NRA-backed team, an SPLC-backed team, or 3 Schmucks and a Terrier.

    Secondly, it is no “exploit” to ask the court to sort out whether or not the phrase “exchange established by the state” actually means “exchange established by the state” or whether it means “exchange established by the state or federal government”. While Some in the congress may have intended to mean the latter, the obligation to write statutes without such clearly differing meanings rests with the legislature. To reinterpret any statute with such a clear meaning in a manner so significantly different is to bestow upon the judiciary the legal competency to legislate. While I would greatly prefer the congress perform one last double check of each provision and detect this error before passage, such a result did not occur and We must now deal with it thru the traditional “rule of law” approach by negotiating such a change in the legislature for no other institution has the authority to do so. Now, maybe there is precedent for such a “look, We know You meant ‘red’ when You clearly said ‘yellow’” approach but I have not found one.

    Additionally, it is not the congress ordering corporations to provide the objected-to products in the Hobby Lobby, et al. case but the administration. The congress gave specific instructions to the executive branch to follow a certain set of guidelines in formulating regulations and it is the executive branch which has, according to the Objectors, failed to adhere to those guidelines. No actual provision of the ACA is challenged; only this particular regulation.

    As such, asking for adherence to separation of powers and the rule of law, as well as enforcement of still existing statutes, do not qualify as “nuisance suits”; they are exactly what One would expect given such perceptions and are not “ridiculous”.

    Nor is “activity/inactivity distinction” “absurd”; the congress only has, with respect to the Commerce Clause, the authority to regulate commerce. Given the wording of the statute (i.e., “penalty”) and the description made by its Advocates (i.e., “mandate”), it is not unreasonable to perceive such a provision as an attempt by the congress to exceed its authority. While I think the Chief Justice is correct to point out the fact the levy in question is treated exactly as a tax increase with credit given for a particular purchase, similar to the mortgage interest deduction, and is collected thru the traditional taxing mechanisms, unlike the so-called “tax” in the aforementioned Hobby Lobby, et al. case which does “affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons” (Cf., Bowen v. Roy), such agreement does not render such challenges as “absurd”.

  4. Mssr. Buchanan also proceeds into a what appears to be a slippery slope argument without presenting a justification. Regardless of how many Jurists support an “expansive version of freedom of contract”, I know of No Jurist proposing the congress does not have “the power to lay and collect taxes” nor to “provide for the … general Welfare of the United States”. If such Jurists do exist, Mssr. Buchanan would help make His case by referencing Them specifically, including Their moments of advocacy in this regard. Clearly, Anyone challenging “Medicare, Part ‘E’” would find Themselves laughed out of the district court and appeals denied due to Helvering v. Davis, Steward Machine Company v. Davis, Carmichael vs. Southern Coal & Coke and Gulf States Paper, and United States v. Butler. If such a denial of clearly delegated powers were to occur, it would mean the American system of government as We have come to know it is “broken” in some fashion.

  5. (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.)fifa 14 ultimate team coins  Elo boost  fifa ut coins  elo boosting service