Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We seem to be approaching an apotheosis of liberal health care angst, as the irresistible force of the appeal of truly universal health care meets the immovable object of Democrats’ desire to make double-triple-sure not to lose the 2020 election. Replacing our current shambles of a health care system with something much simpler and more efficient and equitable makes all kinds of moral, economic, practical, and fiscal sense. However, as Elizabeth Warren is discovering, when you actually spell out a plan for Medicare for All, you start taking heavy fire fast. (And we’re still in the friendly-fire phase—the cynical and deliberately false attacks in the general election will be worse.)
The argument that Medicare for All will be a political albatross has two parts. First, critics argue, moving to a single-payer system will require substituting visible, salient, and unpopular taxes for the submerged and obscure premium costs middle-class people may not realize they’re paying now. That will be unpopular. Second, critics argue, many of the majority of Americans who now have employer-based coverage fear losing it. That fear, in my view, has two distinct components: (A) a fear of disruption of whatever is going well with your current insurance coverage, and (B) what we might call fear of equality: the fear that however flawed your current insurance may be, it must be a lot better than whatever would be offered in a universal program open to the poor.
This week Elizabeth Warren came out swinging with an answer to the first part. She now has a plan for how to pay for Medicare for All that—unlike Bernie Sanders’ plan—does not involve any tax increases on the middle class. By cleverly insisting that both states and employers keep paying much of what they are already paying (except that the payments will now go to the federal government), she avoids asking the same of the middle class. What she hasn’t done is address the second part—many Americans’ fear of losing their employer-based coverage. And that is actually the bigger problem.
It’s not a new problem. It’s one that a lot of very smart people have thought about a lot. Obamacare itself was one response: build on the patchwork system we have, focus on expanding coverage for the uninsured, and minimize disruption to the employer-based health insurance system and the industry that profits from it. Medicare-for-all-who-want-it, which is to say, adding Medicare as a public option throughout the country, through something like the Obamacare system of exchanges and income-based subsidies, is a strong next step and has become the moderate Democratic position. If the public option is efficient and generous enough, it will eventually supplant private insurance. Or, as Jacob Hacker proposes somewhat more ambitiously, we could automatically enroll everyone in Medicare who isn’t already in a good enough employer-based plan. (Employers could choose whether to provide a more robust plan, or just pay to enroll their workers in Medicare.) These plans are framed as alternatives to Medicare for All. But in fact there is no good reason why Elizabeth Warren, or any other Democratic nominee, cannot simultaneously argue (1) my long-term policy plan is Medicare for All and (2) as a shorter term, transitional policy, to get us from here to there, I embrace some approach along these lines.
But there’s also another way to get from here to there. We can enroll everyone in the United States tomorrow in a new, cheap, mini health insurance plan that covers—at first—only a short list of specific medical interventions and treatments. Begin with the lowest-hanging fruit: vaccinations, screening and treatment for certain contagious diseases, basic prenatal care, particular cheap generic drugs that can prevent costly hospitalizations. The idea is to emphasize specific areas where there are huge benefits to the entire American population from making sure everyone has access, whether for public health reasons (e.g. herd immunity) or because of the outsized returns these interventions offer in terms of expensive future medical costs avoided or reduced. (Since the government would directly bear many of those future costs, avoiding them lowers the net cost of the program.) While this “Basic Health” plan is minimalist in its initial coverage, it should cover what it does cover, at least at the start, in a Sanders-Warren maximalist manner: no cost-sharing, no premiums, no co-pays. Basic Health can comfortably coexist with the existing health care system, including employer-based insurance, which would be relieved of the obligation to cover whatever gets on to the short list of treatments covered universally by Basic Health. The list of things Basic Health covers needs to be simple, easy to understand, and very public.
What’s the point? The point is to show Americans that truly universal single-payer coverage can work—not just for people over 65 but for everybody. Instead of requiring individuals or employers to make a choice between Medicare and their existing plan, Basic Health simply says: here are a few basic things that will be covered truly for free. Like courts or parks or public libraries, these will be public goods, open to everyone, regardless of whether you may be purchasing a private version of the same thing in addition. Everyone can then decide for themselves, over time and through politics, whether or not they support adding more things to the Basic Health list.
Of course, the pressure to add things to the list will be immediate and enormous, and it will come from many sources. People with serious illnesses will aim to get their treatments on the list. They will make their case in public to their fellow citizens, their representatives, and the agency administering the program (see below). Makers of drugs and medical devices will want their drugs and devices on the list. Hospitals will want emergency care on the list. And so on. Eventually, the list will expand to the point that it amounts to a bare-bones version of comprehensive health coverage, at which point the American health care debate will be transformed.
Insurers, instead of facing the immediate and existential threat of a Medicare-for-all bill that would eliminate their industry, will face the prospect of needing to adapt, to find ways to offer value to employers and employees in a world where an initially small but growing tranche of coverage is not needed. I am confident that insurers will find ways to adapt to this. Just as many insurers sell popular add-on coverage now for people on Medicare, private health insurance in the U.S. will gradually become add-on coverage that covers access to whatever Basic Health does not cover. Unions, similarly, will be able to bargain for additional coverage that goes well beyond what Basic Health offers.
Such add-ons perpetuate a form of inequality. But there is a flip side to that. They directly address and mitigate what I have called “fear of equality.” It’s ugly to say it, but I do not think a lot of middle-class Americans are ready to accept that a program open to everyone, including the poor, will actually provide access to high-quality care for themselves and their children. Basic Health would operate as an object lesson to change this fear. We would all have access to a program whose results we all could see. Over time, it would hopefully make Americans more open to the idea that universal health insurance can work.
The premise of the Basic Health approach is that it is relatively easy, politically and practically, to expand the coverage of a truly universal, popular, existing program. Medicare itself illustrates this dynamic well. With Basic Health, the idea is to create a program with a set of giant constituencies who will work to strengthen it and protect it from harm: the providers who are paid (simply, easily, and without a lot of paperwork) by the program, and the Americans who are able to (simply, easily, and without a lot of paperwork) get basic things covered through the program.
In other words, Basic Health is as much an intervention in the political economy of health insurance and health care as it is an intervention in the actual provision of insurance and care. The key is to build something simple that works, and that people can see works well. Indeed, one non-trivial component of the program itself would be branding. I envision vaccines emblazoned with a recognizable Basic Health logo. The program should be structured legally as an entitlement, like Medicare, so that it does not require annual appropriations and cannot be embroiled in shutdown politics.
The single most important component of the design of the program is the procedure for deciding, over time, what Basic Health covers. Congress should set the basic parameters of coverage through legislation and give the Department of Health and Human Services broad and very clear regulatory authority to add coverage to Basic Health upon a determination, through a fair process, that such coverage would be cost-effective and beneficial for the American people. This process should be designed in such a way that it is open to public input, organizing, and activism. The statute should build a formal system of regular public consultation about adding coverage to Basic Health that touches every state and every congressional district. At the same time, there should be stringent statutory rules constraining the ability of a hostile executive branch to remove items from the list without specific and strong justification. Because people will rely on Basic Health, and the rest of the health care system will stop covering the things that Basic Health covers, it makes sense to include strong protections against sabotage by a hostile future administration.
There are many ways to address what I’ve called fear of disruption and fear of equality. The Medicare-for-all-who-want-it approach currently on the table is frankly a pretty good one, and my guess is that if Democrats take the White House and Senate next year, some version of that will become the moderate consensus point and will be enacted, regardless of who is president. But it is also worth considering an approach like Basic Health. If what you want in the end is universal coverage, but the problem is fear of disruption and fear of equality, it may be worth going ahead and enacting a non-disruptive form of universal coverage that allows some inequalities to persist outside its ambit. In other words: First just build something truly universal. Then make the case for expanding it through politics.
Basic Health is a tiny thing compared to, say, the Canadian health system. But in the long run it might help us build a more Canadian sort of health care politics, a politics of expanding and protecting a popular universal program, rather than fighting endlessly about whose health care is in danger of being taken away by whom.