Is Medicare for All on the Horizon?

We’re now just a little more than a month away from the day the Supreme Court will hear the arguments that determine the fate of the Affordable Care Act.  

The fight will be narrow – about the constitutionality of the individual mandate and Medicaid expansions.  

The consequences for health care financing, however, will be widespread.

And, ironically, both states rights conservatives and pro-national health insurance progressives may end up rooting against their own positions.

To understand why, consider the four ACA Supreme Court issues that will be argued. 

The first is the constitutionality of the individual mandate under the Commerce Clause of the Constitution. 

To be constitutional under the Commerce Clause, a law has to regulate economic activity that “has a substantial effect” on interstate commerce. 

While it may seem that all the activity under ACA will have a substantial effect on interstate commerce, Judge Vinson in Florida disagreed.  In considering the individual mandate, he found that the failure to purchase insurance by an individual is economic “inactivity,” not “activity.” For Judge Vinson, there’s no distinction between economic inactivity and non-economic activity. (I’m not so sure.)

Two times – in 1995 and again in 2000 – the Supreme Court held that non-economic activity wasn’t covered under the Commerce Clause.  So if the Supreme Court agrees with Judge Vinson, then the individual mandate won’t be constitutional under the Commerce Clause, and the Court will have to consider the second issue.

Is the individual mandate constitutional under the taxing authority of Congress?

If the Commerce Clause doesn’t make the mandate constitutional, then the Anti-Injunction Act might.  It prevents anyone from challenging the right of Congress to collect taxes. 

But even though ACA forces people who don’t buy insurance to pay higher income taxes, Congress specifically referred to these as “regulatory penalties.”  So is a tax by another name still a tax?  If it is – as the Fourth Circuit Court ruled – then the individual mandate is probably constitutional. 

But let’s say it isn’t.

Then the third issue becomes important – whether the individual mandate can be “severed” from the rest of the law. 

Some laws state explicitly that if one section of the law falls, the rest still stand.  But ACA doesn’t.  So it’s up to the Court to decide what happens to ACA as a whole if it finds the individual mandate unconstitutional.

So far judges who have ruled the mandate unconstitutional have disagreed about its severability.

One judge (Hudson) said it was severable, citing a 2010 Supreme Court ruling. When portions of a law are unconstitutional, all that should be thrown out were “problematic portions while leaving the remainder intact.” 

Another judge (Connor) also found it severable, but not from the entire law.  He said that the sections of the law that prevent insurance companies from denying coverage based on pre-existing conditions and prevent higher rates based on health condition, geography, or gender are intertwined with it.  So he found these unconstitutional, too.

A third judge (Vinson) ruled that the individual mandate wasn’t severable, but essential to ACA’s overarching goal.  He therefore decided that the whole law was unconstitutional.

The individual mandate was originally developed as an alternative to single-payer, government-funded, universal health care coverage.  But the fourth issue – whether ACA’s Medicaid expansion is constitutional – may now glue the two together.

The 26 states opposing the Medicaid expansion aren’t arguing against it per se, but against the federal government “coercing” them into implementing it.  In other words, government health care is fine, but not if states have to pay. 

This year, these and other states are proposing disturbing cuts to safety net health services.  Florida is considering a proposal to turn most state health services over to counties .  The Governor of Maine wants to remove 65,000 adults from the Medicaid program.  Louisiana just announced a new round of cuts to local mental health providers.  And Connecticut has begun denying some Medicaid coverage to kids with disabilities.

It’s as if they collectively believe that any problem can be solved by taking money away from it.

Here’s what they’re ignoring.  When you oppose requiring either individuals or states to pay for health care, you’re left with only one viable future option – federally-financed Medicare-for-all.

On the other hand, when you defend ACA as it is, you’re arguing that a two-tiered system of government-subsidized private health insurance for those who can afford it and public insurance for the poor and elderly is the solution to our health care financing crisis.

So when the Supreme Court decides, who wins?

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