Would Single-Payer Healthcare Have Been Free of Constitutional Challenges?

April 11th, 2014

Neil Buchanan comments on whether conservatives would have challenged Obamacare had POTUS gone all in, and backed single-payer healthcare:

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.

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.

I address this issue in the epilogue to Unprecedented. I’m fairly convinced (moreso today than when I wrote it) that Obamacare’s imminent collapse will hasten the onset of some form of universal healthcare. Will there be constitutional challenges to Medicaid for all?

If the ACA continues to result in higher premiums and the con- sequent price controls aimed at controlling these rates nudge insurers to exit the market (insurers are already opting out of California’s exchanges), the mandate may serve as a mere pit stop on the road to single-payer health care (what progressives wanted but did not get in 2009). If that turns out to be the case, constitutional conservatives will be placed in a political pickle. In arguing that the individual mandate was unconstitutional, many prominent conservative and libertarian scholars conceded that single-payer health care would be constitutional. For example, in a February 17, 2011, letter to the New York Times, Randy Barnett wrote, “although I would oppose such a program, existing doctrine would allow Congress to impose a ‘single payer’ tax-and-spending scheme like Medicare on everyone.”

Note how Randy said “existing doctrine.”