Less than a year ago, in Henry Hudson’s courtroom in Richmond, challengers to the Affordable Care Act (ACA) scored their first victory. At the time, Luke Norris and I speculated about what might happen if the Supreme Court were to follow suit. We envisioned a potential long-term consequence that the challengers might like even less than the Act itself. With the Supreme Court agreeing this week to review the Act’s constitutionality, it’s a ripe time to reprise that argument.
In Slate, Luke and I argued that a Supreme Court victory for the challengers could unwittingly resurrect the now-almost-forgotten “public option.”
[S]uppose that conservatives succeed with their current . . . legal strategy, and knock out the individual mandate. Because the private-only mandate had been the middle, compromise position, Congress would be left with the two more extreme options on health care—either a plan that includes something like the public option, or the status quo. As costs rise and more Americans go uninsured, will the public really want to roll back reform? When Americans are asked about the current health care law, a majority say they either favor it or wish it were even stronger. Making the public option the only option would fulfill the wish of those wanting a stronger bill.
We are as skeptical as anyone that a public-option plan could get through this Congress, the next one, or even one ten years from now. But looking out to the policy horizon, and given the unpopularity of the pre-ACA status quo, a public-option plan is more plausible in a world in which an ACA-like mandate is off the table.
We drew a historical parallel to the New Deal era, when a similar dynamic played out.
The National Industrial Recovery Act of 1933 allowed for private industries to create codes to govern labor standards through collective bargaining. Like the current health care law, it harnessed the private sector in order to limit government intervention. It was a compromise between progressives like Sen. Robert Wagner from New York who wanted the federal government to ensure the right to collective bargaining and conservatives who were opposed to legislating on this at all.
Conservatives challenged the NIRA in court, and the Supreme Court ultimately held it was unconstitutional. But the public had grown attached to the right to collective bargaining, and they started to join unions in record levels to demand it. This opened the way for FDR to push for even stronger legislation, which gave the government, rather than businesses, the role of guaranteeing collective bargaining rights and preventing employers from obstructing them. In the end, Wagner and progressives got what they asked for: The Wagner Act of 1935 provided federal rights of collective bargaining and gave labor a new set of legal tools to ensure that this right was upheld. It was a conservative nightmare they themselves had conjured.
These aren’t considerations that should weigh on the Supreme Court’s mind, but it makes one wonder about the unforeseeable consequences of any ruling on a subject that draws deep public engagement. Does the long arc of history bend toward health care reform? We shall see.