Health Care Briefs: The Single Payer Action Brief: Which Side Are You On?

Some amicus briefs remind me of that old Pete Seeger song, Which Side Are You On?

Interested Americans have filed dozens of amicus briefs in the Supreme Court of the United States arguing for and against the constitutionality of the Affordable Care Act.  There are a number of things to take into account in deciding whether to file an amicus brief.  One consideration, for example, is whether one has anything new to say that has not already been covered by the courts or the parties.  Another even more basic consideration, you would think, is whether one is going to help or hurt the cause that one purports to support.
Single Payer Action and fifty doctors filed an amicus brief contending that the Affordable Care Act is unconstitutional because it doesn't go far enough!  They support the adoption of a government-run health care system, and decry the Affordable Care Act as a halfway measure that will not do enough to ensure health care coverage for Americans.  They contend that for-profit health insurance companies will routinely deny coverage and that the law will leave too many people uninsured.
Single Payer Action's consitutional analysis is that the individual mandate is not "necessary" (as in "Necessary and Proper") because the federal government could have simply extended Medicare or Veteran's Health Administration benefits to everybody.  I am not persuaded by this argument.  It is of course true that the individual mandate would not be "necessary" if the government were to take over paying for or delivering health care.  But it is necessary to the particular program of regulation that Congress enacted in the Affordable Care Act.  The group concedes that the Affordable Care Act would not work without the individual mandate.  They simply wish that Congress had enacted another plan of regulation altogether.
Single Payer Action explains its position in the introductory portion of their brief:

Amici are a coalition of non-profit organizations and medical doctors who are active in the effort to achieve universal and comprehensive healthcare access in the United States. Amici agree with Petitioners (“the Government”) that the United States faces a healthcare crisis: the costs generated by the current healthcare system are unsustainable and continue to rise, yet nearly 50 million Americans risk denial of essential healthcare services because they lack insurance. Amici disagree, however, that this crisis can be solved by forcing uninsured Americans to purchase health insurance from private insurance companies, or pay a penalty, as the provision of the Patient Protection and Affordable Care Act (“ACA” or “the Act”) commonly known as the “individual mandate” requires them to do. 26 U.S.C.A. 5000A.  Instead, Amici believe, based upon sound empirical data and peer-reviewed research, that the only solution to the healthcare crisis in the United States, which will both control costs and achieve comprehensive coverage for the entire population, is to adopt a national publicly-financed single payer health insurance system, in which one public entity handles billing and other administrative transactions on behalf of all participants.

This is not an isolated position.  Surveys show while Americans are about equally divided about the wisdom of the Affordable Care Act and whether it should be repealed, about one-fourth of those opposing the Act - about 13% of Americans - would prefer that "the law had gone further."  See Associated Press Repeal?: Most Americans Believe Health Care Reform Did Not Go Far Enough, Poll Finds (September 25, 2010); Washington Post - ABC News Poll (January 16, 2011); CNN Poll: Time Doesn't Change Views on Health Care Law (March 23, 2011).
It is certainly legitimate for Single Payer Action and other groups to support the adoption of a government-funded or government-operated system like Canada's or Britain's.  But such a system is not about to be adopted in the United States.  When the Democratic Party controlled both Houses of Congress in 2009-2010 it was not even able to include a "public option" in the Affordable Care Act, let alone make it the exclusive method of paying for health care.  In this country with its strong history of reliance on the private sector it makes sense to try to achieve universal coverage through individually mandated private health insurance.  If that doesn't work we can enact more comprehensive reform.
It took a monumental effort to enact the Affordable Care Act.  Groups like Single Payer Action would throw all that away on the chimerical notion that they would be closer to their goal of universal coverage if we started over.


Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.