If Medicare For All is Constitutional, So is Obamacare


Let’s start with first principles. If we as Americans want to solve problems that have plagued our health care system for decades — but continue to rely on private health insurance markets — then the most effective solution involves an individual mandate.

To end discrimination based on health status, and achieve near-universal coverage, one option would be a truly government-run “single-payer” system — think Medicare for all. In these systems, the government in effect collects premiums through the tax system, making participation mandatory. In our country, Medicare, the Tricare program for military retirees, the Veterans Administration program for wounded veterans, and the Defense Department program for active duty military are good examples. 

The individual mandate was originally a conservative idea born as a private-sector alternative to a single-payer system. The conservative Heritage Foundation, which first proposed a mandate in 1989, reasoned that a national health system would be inevitable; the issue was what form it should take. Likewise, in an influential journal article published in 1991, conservative economists argued that “a monolithic, government-run system is not necessary to provide universal health insurance.” Instead, they favored the use of competitive private markets — with government intervention to make those markets work.

In the D.C. Circuit Court of Appeals, Judge Brett Kavanaugh — who was appointed to the bench by President George W. Bush — suggested that the courts should defer to Congress on the form that the social safety net should take. Instead of the “tax-and-government-benefit model,” Congress should be free to choose “privatized social services combined with mandatory-purchase requirements.”

The true irony here is that no one doubts that simply extending Medicare to all Americans — the “tax-and-government-benefit model” — would be constitutional. And if Medicare for all would be constitutional, it would be a perverse result if a system that preserves private markets is not.