Balkinization: Affordable Care Act Entrenchment

Affordable Care Act Entrenchment

Abbe Gluck

Several years ago, I wrote on this blog about the concept of the Affordable Care Act as a “superstatute.” In a new article with Thomas Scott Railton in the Georgetown Law Journal, I take that idea further-- detailing a decade of an unprecedented number of challenges to a law that has been uniquely and stunningly resilient. The article offers theories for how the ACA became entrenched—through some strategies that were expected (e.g., doling out of popular benefits), and others not (e.g., a federalism structure that was viewed by many at the outset as a pathology, as a weakening compromise). And we analyze the ACA’s transformative impact not only on the health care system but also on elections, state law, and broader norms of how this country conceptualizes the government’s role in healthcare and our rights to it.

If you think this is an overstatement, check out my new book with Zeke Emanuel: The Trillion Dollar Revolution . There, former House Majority Leader Eric Cantor tells us that the ACA changed the political "baseline," making impossible any Republican alternative that doesn’t provide coverage to substantially the same number of Americans; AEI scholars Joe Antos and James Capretta, in another chapter, agree. Others, from former HHS Secretary Kathleen Sebelius, to former White House Chief of Staff Rahm Emanuel, to former U.S. Solicitors General Paul Clement and Donald Verrilli, each writing in the book about their own respective areas, concur.

Marking the ACA’s trajectory and its tenth anniversary may, at first, seem relatively unimportant now, in the midst of the Covid-10 pandemic. But it cannot be overemphasized how much more of a crisis we would have right now without the ACA. As I have elaborated here ( in Health Affairs) and here (in the WashingtonPost) thanks to the ACA, tens of millions more Americans came into this pandemic with quality insurance already in hand. Imagine the financial strain that our already-maxed-out hospitals would have suffered with millions more uninsured to treat, not to mention the enormous personal stress on those who could not afford to get the treatment they need.

The ACA’s substantial safety net is now also on display, kicking in to provide insurance to the millions more who are losing their jobs and struggling financially. That does not mean there are no more gaps to fill. There certainly are—particularly in areas in which Trump has deliberately undermined the ACA and insurance access in general (as I elaborate here). Don't forget either that the Administration is also on an irresponsible and doctrinally unfounded mission to take down the entire ACA in the Supreme Court later this year. All the more reason to study the ACA’s decade of challenge, resilience and entrenchment.

Posted 9:35 AM by Abbe Gluck [link]