When the Supreme Court begins its extraordinary three days of hearings on the constitutionality of the Affordable Care Act, one of the oddities will be an amicus brief challenging the act's individual mandate from 50 doctors who support national health insurance. They point out the inconvenient truth that, contrary to the administration's representations, the government did not need to require citizens to purchase insurance from private companies in order to meet its goals of serving the health-care needs of the populace. Congress could have enacted a single-payer law.

Since the Constitution unambiguously gives Congress the power to tax, there has never been a serious constitutional challenge to our tax-supported systems of health insurance, Medicare, and the services of the Veterans Health Administration system. In the words of the brief:

Amici thus submit this brief for the purpose of disputing the primary tenet of the Government's position, that Congress cannot regulate the national healthcare market effectively unless it has power to require that citizens purchase insurance from private insurance companies. On the contrary, as set forth herein, Congress has already demonstrated that it can regulate healthcare markets effectively by implementing a single payer system such as Medicare or the VHA.

Much of the brief is devoted to demonstrating the superior efficiencies of single-payer systems, but it is also offers a formidable summary of the constitutional argument against the government's view of what the Commerce Clause permits.

Government contends that the provision is not only "reasonable" but also "necessary" to its broader regulation of the national healthcare market. Brief for Petitioners. In particular, the Government contends that the individual mandate is "key to the viability of the Act's guaranteed-issue and community-rating provisions." But while it might be true that these provisions will adversely impact private insurers' profits, and that the individual mandate offsets this adverse impact by guaranteeing the private insurers a large stream of new customers who are required by law to purchase insurance, that is not sufficient to render the individual mandate constitutional. If it were, Congress could "reform" any private industry – whether it be automobiles, coal, pharmaceuticals or any other – by enacting legislation requiring every that American purchase the industry's goods or services in exchange for some perceived public good the industry provides. Yet Congress has never before enacted such a mandate.

Ouch.

The brief further contends that none of the cases cited by the government "support the conclusion that the commerce power permits Congress to enact any regulation it finds necessary to the viability of a larger scheme regulating interstate commerce."

It would be more than a little ironic if a majority of the Court struck down the Affordable Care Act by relying on these arguments. These points have been made by others, of course. But what's nervy is that some single-payer advocates are tactically allying themselves with the political right in a momentous Supreme Court battle.

The brief is filed in the name of two groups, Single Payer Action and It's Our Economy, and was written by attorney Oliver Hall. It explicitly asks the Court to uphold the ruling of the Court of Appeals for the Eleventh Circuit finding the individual mandate unconstitutional.

Your donation keeps this site free and open for all to read. Give what you can... SUPPORT THE PROSPECT

This tactic must have given some single-payer advocates pause, since the most prominent single-payer group, Physicians for a National Health Plan (PNHP) and such noted proponents of national health insurance as Drs. David Himmelstein and Steffie Woolhandler of Physicians for a National Health Program are not on the brief.

If the Affordable Care Act were to be struck down, it would be a political blow to the Obama administration, as well as another case of overreach by the Roberts Court.

But the Court could well uphold the act. Some observers have suggested that the conservatives on the Court are having second thoughts about the unintended consequences of the Citizens United decision on unlimited political giving. Justices Scalia and Kennedy, moreover, have gone both ways on prior cases involving the reach of the commerce clause and may decide that this is not the time to further risk the Court as an institution, which severely impaired its credibility in Bush v. Gore.

On the other hand, if the Court struck down only the individual mandate, the rest of the act would live on. And the administration and Congress would have to find other ways to prevent uninsured people from free-riding on the system. As my colleague Paul Starr has proposed, a Court finding that the mandate was illegal would not necessarily kill the whole law. Other incentives and disincentives could be created so that most people would find it attractive to purchase insurance.

The amici have a point. A single-payer program would be more efficient and unambiguously constitutional, and even the Affordable Care Act need not be such a gravy train for the insurance industry. This brief, though risky, could turn out to be constructive mischief.