Obamacare As Superstatute
Abbe Gluck
I am
have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute”
theory--their groundbreaking argument that certain statutes are special because
they transform and entrench norms beyond the rights embodied in the statute
itself. Some of my resistance stems from how hard it has been for scholars to
identify and reach consensus on which statutes, apart from Eskridge and Ferejohn's paradigm
example of the Civil Rights Act (which beautifully fits the theory) fit the
bill. (The other part of my resistance comes from dissatisfaction with the
doctrinal implications of their theory.)
But
since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of
debate and drama over the Affordable Care Act without thinking of superstatute
theory. I have nearly finished an article making that case, but given this week’s events, I could not
resist putting the idea out there sooner.
The ACA
seems to clearly satisfy the threshold criteria of superstatute theory. It has
survived (several) election cycles, including a change in Administration. It has survived more political contestation than
any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that we just saw; but also four years' worth of
sabotage by Congress to starve
to death with lack of funding. It also has survived not one, but two,
high profile showdowns in the U.S. Supreme Court that had the potential to take
the entire statute down (
NFIB and
King), and other important challenges to discrete aspects of the law (e.g.,
Hobby
Lobby).
But what
is most interesting to me about the ACA’s recent story for purposes of superstatute theory is the
normative
transformation that the statute seems to have wrought. That will be Obama’s
biggest legacy on health care, regardless of what happens to the ACA itself;
whether it gets amended, partially amended, repealed, or just tweaked and
given a different name. That stuff is politics. I’m talking about our
fundamental and “gut” understanding of what a health care system should be and what the government's role in it should look like.
As I have
detailed
before and further detail in the article, our society has never been willing
to directly confront the question of what exactly a health care system is
supposed to be. Our regulatory structure of health care reflects a purposeful ambivalence between the norms of solidarity
and individual responsibility (should we all be assured some basic level of health
care or do we only deserve the health care we each can earn?). We can explain a
lot of the fragmentation and regulatory design we currently have in health care by our collective desire to
straddle and avoid resolving that tension.
What
the ACA did was more forcefully push the needle toward solidarity than ever
before. During the election, it was Trump
himself who said that “we are going to cover everyone,” that no one’s health care would
be taken away. We saw a remarkable
number of Republicans in the House and Senate over the past seven months
defending Medicaid and blanching at the idea of throwing people off the rolls. Even more
shocking, the threat of killing the ACA entirely led more Democrats to talk publicly
than ever before about
single payer health reform--Medicare for all, what was viewed just 8
months ago as political impossibility, pie in the sky, when Sanders and only a few other idealistic souls were touting it. The
ACA changed the political discourse, the political imagination and also the political possibilities. In
Jack Balkin’s terms, it seems to have moved some ideas from “off the wall” to “on
the wall,” or at least put them on that path.
The ACA
also transformed our
legal
understandings of the healthcare system. The most important transformation was
ACA's facilitation of the federal government’s direct and heavy-handed involvement in the insurance
industry. As I detail in a different new
piece with Nichole Huberfeld, the federal government’s intervention in health
care is certainly not new. But the ACA brought
the federal government into the insurance system like never before--a private industry
previously regulated most directly by the states--and it effectively forced the
industry to change the basic way it does business. None of the repeal bills, notably, would have
changed that. That’s a strikingly widespread
acceptance of a new regulatory model.
There is
a difference between the political difficulty of taking away social welfare benefits once
they are awarded and the entrenchment of new norms that are likely to endure. The
ACA was certainly structured--by rolling out its most popular benefits early--with an eye
toward the former, and some might argue that the recent debates over Medicaid simply
show that benefits once given are hard to take away. But the conversation and
the durability of the statute over the past seven crazy months seem to illustrate that we are also in the realm of
the second: transformative norm entrenchment that goes beyond the four corners
of the statute itself. That's a pretty big deal.
More to
come when the article is posted on SSRN.
Posted
10:18 AM
by Abbe Gluck [link]