Medicare for All Trumps Mandate
By Robert Reich
Why the new healthcare law should have been based on Medicare. (And what
Democrats should have learned by now.)
TWO APPELLATE JUDGES in Atlanta - one appointed by President Bill Clinton and
one by George H.W. Bush - have just decided the Constitution doesn't allow
the federal government to require individuals to buy health insurance.
The decision is a major defeat for the White House. The so-called
"individual mandate" is a cornerstone of the Affordable Care Act, President
Obama's 2010 healthcare reform law, scheduled to go into effect in 2014.
The whole idea of the law is to pool heath risks. Only if everyone buys
insurance can insurers afford to cover people with preexisting conditions,
or pay the costs of catastrophic diseases.
The issue is now headed for the Supreme Court (another appellate court has
upheld the law's constitutionality) where the prognosis isn't good. The
Court's Republican-appointed majority has not exactly distinguished itself
by its progressive views.
Chalk up another one for the GOP, outwitting and outflanking the President
and the Democrats.
Remember the health-care debate? Congressional Republicans refused to
consider a single-payer system that would automatically pool risks. They
wouldn't even consider giving people the option of buying into it.
The President and the Democrats caved, as they have on almost everything.
They came up with a compromise that kept health care in the hands of private
The only way to spread the risk in such a system is to require everyone buy
Which is exactly what the two appellate judges in Atlanta object to. The
Constitution, in their view, doesn't allow the federal government to compel
citizens to buy something. "Congress may regulate commercial actors," they
write. "But what Congress cannot do under the Commerce Clause is mandate
that individuals enter into contracts with private insurance companies for
the purchase of an expensive product from the time they are born until the
time they die."
Most Americans seem to agree. According to polls, 60 percent of the public
opposes the individual mandate. Many on the right believe it a threat to
individual liberty. Many on the left object to being required to buy
something from a private company.
Had the President and the Democrats stuck to their guns during the
health-care debate and insisted on Medicare for all, or at least a public
option, they wouldn't now be facing the possible unraveling of the new
After all, Social Security and Medicare - the nation's two most popular
safety nets - 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 they don't
feel like mandatory purchases. They're more like tax payments, which is what
they are - payroll taxes.
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.
Americans don't mind mandates in the form of payroll taxes for Social
Security or Medicare. In fact, both programs are so popular even
Republicans were heard to shout "don't take away my Medicare!" at rallies
opposed to the new health care law.
Requiring citizens to buy something from a private company is entirely
different. If Congress can require citizens to buy health insurance from the
private sector, reasoned the two appellate judges in Atlanta, what's to stop
it from requiring citizens to buy anything else? If the law were to stand,
"a future Congress similarly would be able to articulate a unique problem...
compelling Americans to purchase a certain product from a private company."
Other federal judges in district courts - one in Virginia and another in
Florida - have struck down the law on similar grounds. They said the federal
government has no more constitutional authority requiring citizens to buy
insurance than requiring them to buy broccoli or asparagus. (The Florida
judge referred to broccoli; the Virginia judge to asparagus.)
Social Security and Medicare aren't broccoli or asparagus. They're as
American as hot dogs and apple pie.
The Republican strategy should now be clear: Privatize anything that might
otherwise be a public program financed by tax dollars. Then argue in the
courts that any mandatory purchase of it is unconstitutional because it
exceeds the government's authority. And rally the public against the
Remember this next time you hear Republican candidates touting Paul Ryan's
plan for turning Medicare into vouchers for seniors to buy private health
So what do Obama and the Democrats do if the individual mandate in the new
healthcare law gets struck down by the Supreme Court?
Immediately propose what they should have proposed right from the start -
universal healthcare based on Medicare for all, financed by payroll taxes.
The public will be behind them, as will the courts.
Robert Reich is Chancellor's 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.