Newswire: New court ruling should put ‘Medicare For All’ debate into perspective

All the 2020 Democrats are pushing toward universal coverage, while Trump and his judicial allies are pushing in the opposite direction

By Jonathan Cohn, Huffington Post
Thursday night’s Democratic presidential debate was nearly over when the inevitable happened: The candidates started fighting about “Medicare for All.”
This time the discussion didn’t go on forever, as it had in previous debates. And just two of the candidates, Sen. Bernie Sanders (I-Vt.) and Vice President Joe Biden, did most of the talking.
Still, the arguments were basically the same as before, with Sanders talking about how Medicare for All would cover everybody, with no out-of-pocket costs, and Biden warning that it would mean forcing people who like employer coverage to give it up.
But this version of the debate was different than previous ones in one important respect. It came one day after a federal appeals court declared a key element of the Affordable Care Act unconstitutional, putting the entire law in jeopardy.
That put the argument over Medicare for All into a very different context ― or, at least, it should have.
In particular, the court ruling is a reminder that disagreements among Democrats over how to achieve universal coverage probably matter less than disagreements between Democrats and Republicans over whether universal coverage is even a goal worth pursuing.
The Republican Way: Millions Lose Coverage
The ruling was for a case called Texas v. U.S., which a group of Republican state officials brought two years ago. According to the lawsuit, President Donald Trump and the Republicans rendered the law’s “individual mandate” unconstitutional when, as part of the 2017 tax cut, they reduced the mandate’s financial penalty to zero. And if the mandate is unconstitutional, the lawsuit claims, the entire law must go.
The logic of the case is so far-fetched that even conservative lawyers who brought previous challenges to “Obamacare” think the courts should reject it. The case is basically a laughing stock within the legal provision, or it would be if not for the fact that Reed O’Connor, a federal district judge in Texas, agreed with it and ruled, last year, in favor of the plaintiffs. That prompted an appeal to the U.S. Court of Appeals for the 5th Circuit, which is the court that ruled on Wednesday.
That decision, by two Republican-appointed judges, did not go as far as the district court opinion had. Although the judges agreed with O’Connor about the mandate’s constitutionality, they said he might have been a little hasty in throwing out the whole statute and asked him to think more carefully about whether at least some parts can stay.
But their instructions were vague, and legal experts like Nicholas Bagley, a University of Michigan professor who co-authored a brief in the case, thinks it’s likely O’Connor will conclude that only small portions of the law can remain on the books.
O’Connor won’t get the last word, because the Supreme Court is nearly certain to hear the case eventually. But it could be two or three years before the case makes it to the high court, depending on whether the Democratic state officials defending the law ask for an immediate appeal and, if they do, whether the Supreme Court decides to take it.
As for the final outcome, the high court has already rejected two challenges to the 2010 health care law, with Chief Justice John Roberts joining the court’s four Democratic appointees each time. The chances of this latest, less legally plausible lawsuit prevailing would seem to be pretty small, though it could depend in part on whether all five of the justices who upheld the Affordable Care Act previously are still on the bench.
The Democratic Way: Millions Gain Coverage
Whatever happens with the case, its very existence is a reminder that Trump, who supports the lawsuit, remains committed to rolling back the Affordable Care Act any way he can. And it is quite a contrast to the Democratic presidential candidates, each of whom opposes those efforts.
That alone is a pretty stark divide. Roughly 20 million people could lose insurance if the lawsuit is successful, according to estimates by the Urban Institute, to say nothing of the guarantees of coverage for people with preexisting conditions that would also go away.
But the Democratic candidates agree on a lot more than opposition to repeal of the Affordable Care Act. Each one of them recognizes that, even with the law in place, tens of millions of Americans still can’t afford medical care, either because they still don’t have insurance or the insurance they have leaves them with some combination of premiums and out-of-pocket costs they cannot afford.
The differences among the candidates is in how they would address these problems. Medicare for All would wipe away existing insurance arrangements and enroll everybody into a new government-run plan, with essentially zero out-of-pocket costs. The financing would come through some kind of taxes, but the idea is that most people would end up spending less money ― in many cases, a lot less ― than they do today. The new system would also be simpler for both patients and providers, especially when it comes to billing.
The proponents of this approach are Sanders and Sen. Elizabeth Warren (D-Mass.), although she has said she would move first to create a transitional plan and then ask Congress for a full-blown version of Medicare for All two years after taking office.
The more incremental approaches other Democrats, including Biden, have proposed vary from candidate to candidate. But in general they seek to make the Affordable Care Act’s financial assistance more generous and, then, to create a new, government-run program open to anybody who wants to enroll. Most of these plans also envision some form of automatic enrollment for lower-income Americans for whom coverage would basically be free.
The number of people without insurance would fall, so that coverage would approach universal levels, and even people with employer-sponsored coverage would have access to more generous benefits.
The more incremental plans also envision the federal government negotiating over drug prices directly with manufacturers and setting limits on what doctors and hospitals can charge patients even when they are not part of private insurance networks. That last part is important, because it would mean government is regulating health care prices, which is what Medicare for All would also do.
In all of these respects, the more incremental plans would push the U.S. health care system in the same direction that Medicare for All would: There would be more financial protection, a bigger role for government-provided insurance, and more federal regulation of health care prices. And remember, this is now the consensus position even for the Democratic candidates who are “moderates.”
The Differences Matter, But So Do The Similarities
To be clear, the differences between Medicare for All and the more incremental approaches still matter. And they matter a lot.
Estimates suggest that while Medicare for All really would mean virtually every person in the U.S. has health insurance, an incremental plan like Biden’s would still leave about 10 million without coverage. Medicare for All would also mean zero out-of-pocket costs for everybody, not just low-income Americans, and more aggressive cost control.
Naturally, all of those features would come with trade-offs ― like more disruption, swapping private payments for taxes, more government influence over a big section of the economy ― that might not appeal to all Democrats, let alone all Americans.
Similarly, it is fair to assume that a candidate like Sanders, who not only “wrote the damn bill” but has also made Medicare for All the main focus of his agenda for most of his career, would pursue comprehensive health care reform more aggressively and seriously than a candidate like Biden, who in early 2009 was among those members of the Obama administration urging the president to delay a push on health care in order to focus more on the economy.
By the same token, a presidency that made Medicare for All an immediate priority would likely have less time and attention for other issues, like climate change or child care, because presidential attention is a limited resource and something as big and controversial as Medicare for All would not leave room for pushing much else.
Of course, even a newly elected President Sanders would have a hard time passing Medicare for All, given that Democrats would be lucky to have a bare majority in the Senate and already several more conservative members have said they oppose the idea.
Health care represents more than one-sixth of the economy and, every day, millions struggle with medical bills in ways that cause real harm. Democratic candidates are right to argue about the best way of addressing those problems and Democratic voters are right to take those differences seriously.
But literally any of the major Democratic presidential candidates want government doing a lot more to help people get insurance, while Republicans prefer it doing a lot less. And the Republicans are making serious headway ― more, perhaps, than many Democratic voters realize.