The essential vote on the 11th Circuit Court of Appeals panel that ruled that the individual-coverage mandate in President Obama’s healthcare reform is unconstitutional did not come from a reactionary Republican appointed by Ronald Reagan or George W. Bush.
Rather, it came from a respected jurist whose two appointments to the federal bench—first as a judge for the Northern District of Georgia in 1994 and then to the 11th Circuit in 1997—were made by then-President Bill Clinton. No, Judge Frank Mays Hull is not a raging lefty, but nor is she a right-wing judicial activist. A former law clerk for Judge Elbert Parr Tuttle, who as the chief justice of the US Court of Appeals for the Fifth Circuit from 1960 to 1967 led the court in issuing a series of epic decisions on behalf of civil rights, Judge Hull has a reputation as a moderate defender of the rule of law who has earned reasonable marks for her pragmatic and decidely mainstream interpretations of the Constitution.
So why did Hull join with another member of the appeals court panel (Chief Judge Joel Dubina, an appointee of George H.W. Bush) to form the 2-1 majority that rejected the individual mandate while affirming the rest of the law? Perhaps it was because one can favor sweeping healthcare reforms—including an expansion of Medicare—while still believing that it is wrong to require Americans to buy insurance from for-profit insurance companies.
Hull telegraphed her thinking with repeated questions during June oral arguments in Atlanta regarding the case. Noting that “the panel spent a significant amount of time discussing whether the mandate is ‘severable’ from the rest of the law,” Politico pointed out that: “Hull in particular asked the federal government three times where the line should be.”
Ultimately, Hull and Dubina came to the conclusion that the individual mandate could, and should, be removed from an otherwise constitutional plan.
Why? Because, as the judges wrote in their majority decision: “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”
Those of us who favor fundamental healthcare reform have always been uncomfortable with the individual mandate. So was candidate Barack Obama, who distinguished himself from Hillary Clinton (a mandate backer) by saying in a February 2008, interview: “Both of us want to provide health care to all Americans. There’s a slight difference, and her plan is a good one. But, she mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”
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Candidate Obama was right.
The individual mandate was always a bad idea. Instead of recognizing that healthcare is a right, the members of Congress and the Obama administration who cobbled together the healthcare reform plan created a mandate that maintains the abuses and the expenses of for-profit insurance companies—and actually rewards those insurance companies with a guarantee of federal money.
Those who think that the for-profit (or even not-for-profit) insurance industry has to control any healthcare reform initiative have every right to be upset with the 11th Circuit’s ruling—which almost certainly will send the case of the Obama healthcare plan to the US Supreme Court.
But those of us who have no desire to perpetuate the insurance industry can and should recognize that the proper—and entirely constitutional—reform is an expansion of Medicare to cover all Americans.
There is no question that Medicare is a sound and popular program. (Just ask House Budget Committee chair Paul Ryan, R-Wisconsin, who took an epic political beating when he proposed a scheme to replace the successful single-payer system with a voucher scheme designed to enrich insurance firms.)
While Medicare is exceptionally popular, polling shows that the individual mandate is not—according to recent surveys, roughly 60 percent of Americans oppose it.
It also passes constitutional muster.
As former Labor Secretary Robert Reich notes: "[No] federal judge has struck down Social Security or Medicare as being an unconstitutional requirement that Americans buy something. Social Security and Medicare aren’t broccoli or asparagus. They’re as American as hot dogs and apple pie.”
“So if the individual mandate to buy private health insurance gets struck down by the Supreme Court or killed off by Congress, “ says Reich, “I’d recommend President Obama immediately propose what he should have proposed in the beginning — universal health care based on Medicare for all, financed by payroll taxes.”
The insurance companies would, of course, scream.
But let them complain.
Americans don’t need mandates. They need healthcare.
And they have every right to ask, as activists with Physicians for a National Health Program have, that Medicare be expanded to cover all Americans —affordably, efficiently, capably and constitutionally.
