Healthcare Jujitsu: A Path to Medicare for All

by Robert Reich

Not surprisingly, today’s debut Supreme Court argument over the so-called “individual mandate” requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a “tax,” and the question of whether the issue is ripe for review.(File photo)
Behind this judicial foreplay is the brute political fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.
But 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.
Here’s how.
The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.
Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.
This dilemma is the product of political compromise. You’ll remember the Administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.
But don’t expect the Supreme Court to address this dilemma. It lies buried under an avalanche of constitutional argument.
Those who are defending the law in Court say the federal government has authority to compel Americans to buy health insurance under the Commerce Clause of the Constitution, which gives Washington the power to regulate interstate commerce. They argue our sprawling health insurance system surely extends beyond an individual state.
Those who are opposing the law say a requirement that individuals contract with private insurance companies isn’t regulation of interstate commerce. It’s coercion of individuals.
Unhappily for Obama and the Democrats, most Americans don’t seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.
The President and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option.
After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.
Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.
There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)
Even if private health insurers are organized as not-for-profits, there’s still a problem of public accountability. What’s to prevent top executives from being paid small fortunes? (In more than a few cases this is already happening.)
Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.
So why not Medicare for all?
Because Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and seek to privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.
Obama and the Democrats should do the reverse. 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.

This work is licensed under a Creative Commons License

Robert Reich is Professor of Public Policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He has written twelve books, including The Work of Nations, Locked in the Cabinet, and his most recent book, Supercapitalism. His "Marketplace" commentaries can be found on publicradio.com and iTunes.

50 Doctors for Singlepayer

FOR IMMEDIATE RELEASE February 14, 2012 9:20 AM

CONTACT: Single Payer Action Oliver Hall; attorney 617.953.0161 Russell Mokhiber; Single Payer Action 202.468.8868 Margaret Flowers, MD; It’s Our Economy 410.591.0892 Kevin Zeese; It’s Our Economy 301.996.6582

Fifty Medical Doctors for Single Payer Urge Supreme Court to Strike Down Individual Mandate

WASHINGTON - February 14 - Fifty medical doctors who favor a single payer health insurance system today urged the US Supreme Court to strike down the individual mandate.
In a brief (pdf) filed with the Court, the fifty doctors and two non-profit groups – Single Payer Action and It’s Our Economy – said that the Patient Protection and Affordable Care Act’s (ACA) individual mandate is unconstitutional.
The individual mandate is the provision of the ACA that requires Americans to purchase health insurance from private insurance companies if they do not otherwise have coverage.
The doctors are challenging the government’s claim that the individual mandate is necessary to reach Congress’ goal of universal coverage.
“The court should decide the constitutionality of the individual mandate based on the best available evidence,” said attorney Oliver Hall. “That’s why it is so important that these medical doctors provide the court with the information in their brief, which demonstrates that Congress can address the United States’ healthcare crisis by adopting a single payer system.”
“It is not necessary to force Americans to buy private health insurance to achieve universal coverage,” said Russell Mokhiber of Single Payer Action. “There is a proven alternative that Congress didn’t seriously consider, and that alternative is a single payer national health insurance system.”
“Congress could have taken seriously evidence presented by these single payer medical doctors that a single payer system is the only way to both control costs and cover everyone,” Mokhiber said. “Instead, Senator Max Baucus (D-Montana), chair of the Senate Finance Committee which drafted the law that became the ACA, had two of those doctors – Dr. Margaret Flowers and Dr. Carol Paris – arrested and thrown in jail. Those doctors are now two of the 50 who have signed onto this brief challenging the Constitutionality of the ACA.”
“If the US Congress had considered an evidence-based approach to health reform instead of writing a bill that funnels more wealth to insurance companies that deny and restrict care, it would have been a no brainer to adopt a single payer health system much like our own Medicare,” said Dr. Margaret Flowers. “We are already spending enough on health care in this country to provide high quality universal comprehensive lifelong health care. All the data point to a single payer system as the only way to accomplish this and control health care costs.”
"People will have the greatest control of their own healthcare if the insurance industry is removed from between doctors and patients,” said Kevin Zeese of It’s Our Economy. “And, people will no longer be threatened with increased premiums, decreased coverage and financial ruin caused by a health crisis."
Read the full brief here (pdf)

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Singlepayer Quieted Catholic Objections to Health Care in Europe

By Amy Goodman

The leadership of the Catholic Church has launched what amounts to a holy war against President Barack Obama. Archbishop Timothy Dolan appealed to church members, “Let your elected leaders know that you want religious liberty and rights of conscience restored and that you want the administration’s contraceptive mandate rescinded,” he said. Obama is now under pressure to reverse a health-care regulation that requires Catholic hospitals and universities, like all employers, to provide contraception to insured women covered by their health plans. Bill Donohue of the Catholic League said, “This is going to be fought out with lawsuits, with court decisions, and, dare I say it, maybe even in the streets.” In the wake of the successful pushback against the Susan G. Komen Race for the Cure’s decision to defund Planned Parenthood, the Obama administration should listen to the majority of Americans: The United States, including Catholics, is strongly pro-choice.

Rick Santorum most likely benefited from the 24-hour news cycle this week with his three-state win. Exactly one week before the caucus/primary voting, on Jan. 31, The Associated Press broke the story that Susan G. Komen Race for the Cure, a $2 billion-per-year breast-cancer fundraising and advocacy organization, had enacted policies that would effectively lead it to deny funding to Planned Parenthood clinics to conduct breast-cancer screenings and mammograms, especially for women with no health insurance. Linked to the decision was a recently hired Komen vice president, Karen Handel, who, as a candidate for governor of Georgia in 2010, ran on a platform to defund Planned Parenthood. The backlash was immediate, broad-based and unrelenting. By Feb. 3, Komen reversed its decision. On Feb. 7, Handel resigned from Komen.

Adding fuel to the ire was news that the U.S. Department of Health and Human Services had issued the regulation requiring employer insurance plans to provide contraception. The coup de grace, on primary/caucus day, was the decision handed down by the 9th U.S. Circuit Court of Appeals overturning California’s controversial Proposition 8, which banned same-sex marriages.

For Santorum, in a primary battle with Mitt Romney, it was “three strikes, you’re in.” As a conservative Catholic and father of seven, Santorum has long waged the culture war, with a focus on marriage, abortion and sex. He once likened homosexuality to bestiality.

According to the nonpartisan Guttmacher Institute, which studies reproductive health issues globally, in the United States, “among all women who have had sex, 99 percent have used a contraceptive method other than natural family planning. This figure is virtually the same among Catholic women (98 percent).” According to a Public Religion Research Institute poll, 58 percent of Catholics believe that employers should provide employees with health-care plans that include contraception.

Catholic activists who acknowledge the broad use of contraception among their church members, despite its official prohibition, suggest women can “go elsewhere” to get the preventive care. And if they can’t afford to? Loretta Ross, national coordinator of the SisterSong Women of Color Reproductive Justice Collective in Atlanta, told me: “This rule really allows low-income women, women who are dependent on their health care, to access birth control—women of color, in particular ... if you don’t want to use birth control, don’t buy it, don’t use it. But don’t block others who do want to use it, who cannot afford it, from accessing it.”

One possible solution to the debate came from a surprising quarter. Michael Brendan Dougherty, a Catholic commentator, was in church a couple of weeks ago when he heard the priest read out a letter from Archbishop Dolan encouraging Catholics to oppose the president. Dougherty, who supports the church’s opposition to the regulation, suggested to me that a single-payer health-care option could solve the problem: “It would solve this particular problem of conscience, as it has in Europe. The bishops don’t like that the government subsidizes abortion or contraception, but they are not in full mode of fury, because they are not being asked to formally cooperate with things they view as sinful.”

Loretta Ross agrees with the single-payer solution, but says the current contraception controversy masks a “war on women with all this rhetoric about religious freedom and care for not only the pre-born, but now, with the attack on contraception, you’re attacking the preconceived. ... We’re not going to take it lying down. And as the fight with the Komen Foundation proved, we are a force to be reckoned with. And we’re actually going to work to strengthen President Obama’s stand in supporting contraceptive access.”

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 1,000 stations in North America. She is the author of “Breaking the Sound Barrier,” recently released in paperback and now a New York Times best-seller.

© 2012 Amy Goodman