Healthcare, The Federal Government, and I
Dominic Mayle, Staff Writer
America has a unique and tumultuous story to tell about the way healthcare is accessed and delivered. Certain European nations offered health and other benefits as part of an explicit social contract to tamp down labor discord during heated industrialization, or to maintain patriotic solidarity during wartime.[1] But in the United States, private insurance seems to have arisen as an unplanned contingency, an adaptation by professional communities to rising and uncontrolled costs, which later created a market for health insurance as a product.[2] This country has only recently begun to make a conscious effort to approach healthcare as a social commodity.
Here, I will examine two forms of publicly administered universal healthcare and the Constitutional issues they might raise.
The most ‘public’ approach would be the full nationalization or expropriation of private healthcare producers, which would then function as parts of a single, public provider. Any socialization scheme in the United States must raise obvious questions about property rights. The Fifth Amendment does permit takings of private property for public use, so long as there as there is just compensation. Congress may determine what constitutes “public use” by statute, and it is not inconceivable that America may come to regard public health as a integral function of government. Socialized healthcare would be along the lines of infrastructure development, reclamation, and conservation, the purposes for which this Constitutional authorization has traditionally been invoked.[3] In this context, courts have typically chosen not to “second-guess” legislative choices about the mechanisms to achieve public policy goals.[4] In a less obvious turn, it may be that a publicly administered health system, which almost necessarily must restrict personal control over medical treatment by determining what options are available and under what conditions, might raise issues under Substantive Due Process. The United States Supreme Court has recognized the existing of unenumerated rights and struck down laws, which unreasonably intrude on the freedom of choice in these areas. Some of these rights involve basic bodily autonomy and the right to maintain the integrity of the body.[5] Any publicly controlled ‘rationing’ of medical care, whether purposeful or incidental to resource constraints, may intrude into this area.
Alternatively, a universal health system could be arranged with the government acting as a single, intermediary payer through which individuals access privately owned and produced health services. Some would question whether the federal government has the Constitutional authorization to run such a program. The Constitution provides Congress the power to “provide for the. . .general welfare of the United States.” As above, the courts have deferred to Congress to determine what constitutes the “general welfare” and what expenditures will promote it, but this authority does not give the federal government a power to legislate substantively in the absence of some other express grant of federal power.[6],[7] Power for the regulatory elements of such an arrangement may be found in the Commerce Clause. These are the same bases for programs including Medicare and Medicaid. Although this has been challenged on several occasions, the Supreme Court has never held taxation and spending programs that promote access to healthcare to exceed Congress’ authority.[8]
So, in either case, I do not find any Constitutional arguments against either a single-payer or single-provider approach to universal coverage. There are doubtless other concerns, legal and practical and philosophical, but maybe we are not stopped from going further.
[1] Cf. Jonathan Steinberg, Bismarck: A Life (2013) (Recounting the origins of Germany’s welfare state as a sort of ‘peace treaty’ between the Bismarck government, which intended to keep up a breakneck pace of industrialization, and the urban working classes); Steve Fraser, The Age of Acquiescence (2015) (The single-provider system in the U.K. has its origins in D. L. George’s aristocratic paternalism).
[2] One source explains this to be due to the practice of medicine becoming ever more technological and based on a network of specialists. Kenneth Shuster, Because of History, Philosophy, the Constitution, Fairness & Need: Why Americans Have a Right to National Health Care, 10 Ind. Health L. Rev. 75 (2013).
[3] Tennessee Valley Authority v. Welch, 327 U.S. 546 (1946) (“It is function of Congress to decide what type of taking is for public use…”).
[4] Fideicomiso de la Tierra del Cano Martin Pena v. Fortuno, 604 F.3d 7 (1st Cir. 2010).
[5] See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (Access to birth control); Roe v. Wade, 410 U.S. 113, 153 (1973); Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990) (A patient’s wishes regarding the continuation of artificial life support, and not the family’s, control).
[6] Cf. Homans v. City of Albuquerque, 217 F. Supp. 2d 1197 (D.N.M. 2002); Helvering v. Davis, 301 U.S. 619 (1937) (“general Welfare” cannot be determined by “static formulae.”).
[7] Carter v. Carter Coal Co., 298 U.S. 238 (1936) (Congress has no authority to legislate substantively for general welfare except as it may be promoted by exercise of powers which are granted).
[8] See, e.g., Helvering v. Davis, 301 U.S. 619 (1937).
