Single-Payer and the Constitution

Is national health insurance Constitutional? It’s an issue we supporters of single-payer need to take seriously because our opponents will almost certainly argue that it is not in an attempt to prevent passage and will also challenge the Medicare for All Act on constitutional grounds when it becomes law.

Nowhere in the Constitution or Bill of Rights is a right to healthcare specified. Seventy-three years ago, President Franklin Delano Roosevelt proposed what he called a “Second Bill of Rights” that would have guaranteed: “The right to adequate medical care and the opportunity to achieve and enjoy good health” among other economic rights. But Roosevelt did not seek to amend the Constitution, his intention was to work with Congress for its implementation though the legislative process. Roosevelt died before he was able pursue the idea further and it was largely forgotten, although there has been a resurgence of interest in the Second Bill of Rights in recent years. Legal scholar Cass Sunstein has also argued that the Supreme Court was effectively implementing parts of the Second Bill of Rights though case law holdings, particularly in the areas of education and welfare benefits, until its composition began to become more conservative in the 70s and 80s (see: The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever).

However, since 1946 the United States has signed at least six treaties and international declarations recognizing a right to healthcare in whole or in part. Two of the treaties were signed and ratified, which means that under Article VI, Section 2 of the Constitution they are the “supreme law of the land”, two others were signed but never ratified and the remaining two were declarations that while signed are not considered to be legally binding. The first of these is the World Health Organization Constitution ratified on June 14, 1948 which states in relevant part:

“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition…Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”

The second is the International Convention on the Elimination of All Forms of Racial Discrimination, ratified on October 21, 1994:

“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights…The right to public health, medical care, social security and social services.”

The third is the International Covenant on Economic, Social, and Cultural Rights, signed by President Carter on October 5, 1977:
“Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

© The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

The fourth is the Convention on the Rights of the Child, signed by UN Ambassador Madeleine Albright on behalf of President Clinton on February 16, 1995:

“Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care.”

The fifth is the UN Universal Declaration of Human Rights, signed by the United States on December 10, 1948:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”

And, finally, World Health Assembly Resolution 58.33, passed on May 25, 2005:

“Recognizing the important role of State legislative and executive bodies in further reform of health-financing systems with a view to achieving universal coverage,

1. URGES Member States:

(1) to ensure that health-financing systems include a method for prepayment of financial contributions for health care, with a view to sharing risk among the population and avoiding catastrophic health-care expenditure and impoverishment of individuals as a result of seeking care;

(2) to ensure adequate and equitable distribution of good-quality health care infrastructures and human resources for health so that the insurees will receive equitable and good-quality health services according to the benefits package;

(3) to ensure that external funds for specific health programs or activities are managed and organized in a way that contributes to the development of sustainable financing mechanisms for the health system as a whole;

(4) to plan the transition to universal coverage of their citizens so as to contribute to meeting the needs of the population for health care and improving its quality, to reducing poverty, to attaining internationally agreed development goals, including those contained in the United Nations Millennium Declaration, and to achieving health for all;” (http://healthcare.procon.org/view.resource.php?resourceID=005996)

Opponents of national health insurance will probably not raise the white flag here. They will instead likely point out that Article VI, Section 2 also says that treaties must be made pursuant to the Constitution, “under the authority of the United States.” They will further argue that Congress does not have the authority to make treaties such as those listed above, that its powers are restricted to those enumerated in Article I, Section 8, which clearly does not include providing healthcare or health insurance. But are they right, is it really that simple?

The preamble to the Constitution states that one of its purposes is to “promote the general welfare.” The phrase makes an appearance again at the very beginning of Article I, Section 8, where it states that Congress has the “power to lay and collect taxes” in order to “provide for the general welfare of the United States.” Is this just mere rhetorical flourish or does it have real meaning and what is its proper meaning?

Debate over this has been going on nearly as long as the Constitution has existed. In an 1831 letter, James Madison, the so-called “Father of the Constitution,” wrote that the clause authorized Congress to spend money, but only to carry out and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. But Alexander Hamilton, Madison’s close ally in the fight for ratification of the Constitution and co-author of most of the Federalist Papers, believed to the contrary that the clause was separate, standing on its own, and that it granted Congress the power to spend without limitation for the general welfare of the nation. Today, conservatives have seized on Madison’s statement as support for their efforts to eliminate the federal government’s role in a number of areas, including healthcare. But why is Madison’s opinion any more authoritative or binding than that of Hamilton? Furthermore, Madison himself sometimes applied a more liberal interpretation of the Constitution. Though he opposed the first bank of the United States on constitutional grounds, he signed the second into law as president in 1816 because he felt that by its acceptance of the first bank, the nation had “put a construction on the Constitution, which having made it, had the supreme right to declare its meaning. (see http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html and https://www.americanprogress.org/issues/courts/reports/2011/05/27/9610/t...)

Over a hundred years later, a majority of the Supreme Court vindicated Hamilton’s view in the case of United States v. Butler (297 U.S. 1 1936). Though the court struck down key provisions of the Agricultural Adjustment Act of 1933 as being an unconstitutional exercise of Congress’s regulatory power, it also held that Congress has broad authority to tax and spend for the general welfare and is not limited by the powers specifically enumerated in Article I, Section 8. In Butler the court specifically re-examined the conflicting views of Hamilton and Madison regarding the general welfare clause of Article I and also took note of the pro-Hamiltonian opinion of Associate Justice Joseph Story (1779–1845), who’s Commentaries on the Constitution of the United Stateswere a cornerstone of 19th century jurisprudence and remain a critical source of historical information about the nascent American republic and the early struggles to define its law. In the Butler court’s own words: “Study of all these leads us to conclude that the reading [of Article I, Section 8] advocated by Justice Story is the correct one.” (https://scholar.google.com/scholar_case?case=1427345954995665703&q=unite...(1936)&hl=en&as_sdt=6,33&as_vis=1, I am also indebted to jamess’ America’s Misunderstood Mission: Promoting the General Welfare, https://www.dailykos.com/stories/2014/11/2/1340978/-America-s-Misunderst...)

More recently, though no mention was made of Butler, in the case of National Federation of Independent Businesses v. Sebelius (567 U.S. 519 2012) a majority of the Supreme Court agreed that the Affordable Care Act’s individual mandate to buy health insurance was a constitutional exercise of Congress’s power to tax.

The Expanded and Improved Medicare for All Act would be funded by; 1) existing sources of government revenue for healthcare; 2) by increasing personal income taxes on the top 5% of income earners; 3) by instituting a progressive excise tax on payroll and self-employment income; 4) instituting a tax on unearned income [interest and capital gains]; and 5) instituting a tax on stock and bond transactions. In return, expenses for premiums, co-pays, deductibles and numerous unnecessary expenses on businesses, in terms of both time and money, go away. The Act is clearly an example of Congress using its power to tax and spend for the general welfare and as such it stands on strong constitutional ground. Finally, the fact that the United States has signed and ratified treaties recognizing a right to healthcare means that, in the words of Madison, we, the people, have “put the construction on the Constitution” and exercised our supreme right to join the rest of the civilized world and enact a national health insurance program.