My friends are
holding a New Year’s Eve Party tonight to ring in the new federal fiscal year. At the stroke of midnight, in place of the
Times Square ball, what will be dropping is the “reconciliation instruction”
that Republicans gave themselves last winter to repeal the Affordable Care Act (ACA). The Senate Parliamentarian’s ruling on this makes sense: that instruction was contained in the budget
resolution for fiscal year 2017, and Congress cannot even purport to improve that
year’s budget after the year is finished.
Although procedural maneuvers are still possible to allow repealing the
ACA with a simple majority in the Senate, doing so would undermine efforts to
pass massive tax cut legislation that is even dearer to Republican donors than
repeal-and-replace. Such maneuvers also
would take a while, allowing opposition to mobilize, precluding sudden attacks
like the recent Graham-Cassidy bill.
We may see renewed
efforts to kill the ACA if Republicans pick up seats in the mid-term elections
or if Mike Pence, who surely would be a stronger president, replaces Donald
Trump in the Oval Office. The ACA will
not definitively
be safe until Republicans pass legislation to improve the ACA, such as that
under negotiation between Senators Lamar Alexander (R-TN) and Patty Murray
(D-WA). Still, this seems like a good
time to consider what the demise of “repeal-and-replace” means for our informal
constitution.
Abbe Gluck offers
a fascinating
argument that the ACA’s survival signals a fundamental change in how
Americans have come to see health care, from individual privilege to social
necessity. She is clearly correct: the repeal legislation’s remarkable
difficulties in a deeply conservative House, and its ultimate defeat in the
Senate, reflect its overwhelming unpopularity with the broad electorate. Not only did it largely unite a progressive
coalition that had previously been consumed with squabbling about single-payor
plans, but it also won the enmity of huge swaths of voters that supported
Republican congressional candidates and President Trump. Popular constitutionalists like Bruce
Ackerman, Bill Eskridge, and John Ferejohn argue that constitutional moments
are not complete until the new order becomes so entrenched that continued
resistance becomes politically suicidal.
We have not reached that point yet, but we may be getting close. Ironically, it may be President Trump’s
deliberate sabotage of the ACA that takes us the rest of the way by creating a
crisis that Republicans cannot ignore (because they are implicated) and cannot
address by tearing down the ACA (because they have lost public credibility
through their numerous horrific “repeal-and-replace” bills).
What remains to be
seen is whether this constitutional moment is limited to health care. A few years ago I argued
that if the ACA survived, it would represent a broader change in our public law
regime in at least four respects. Specifically,
I argued that the ACA forcefully placed the federal government’s superior
fiscal capacity at the center of our fiscal federalism. That model rose to prominence in the New Deal,
but has faced pushback from those regarding it as subversive to states’ dignity
and sovereignty. The ACA effectively
ended several decades of experiments with state-level health care reforms,
which regularly fell apart when recessions prevented states from maintaining
subsidies.
Champions of the
repeal-and-replace bills, most of which also capped federal contributions to
the existing Medicaid program at levels far below projected need, invoked state
sovereignty when insisting that reduced federal contributions did not
necessarily require Medicaid cuts.
Technically, they were right:
states could make up the difference out of their general funds. Yet the impracticality of this argument
prevented it from ever gaining traction, with estimates of huge coverage losses
being widely accepted. The ignominious
fate of the Graham-Cassidy bill certainly suggests a sea change from the Nixon,
Reagan, and Gingrich eras, when proposing a block grant was the magic elixir
for making social programs disappear. Going
forward, arguments from the federal government’s superior fiscal capacity seem
likely to become decreasingly controversial.
President Trump’s bizarre attempt to blame Puerto Rico for lacking the
financial capacity to provide its own disaster relief cannot help critics of
the superior capacity model.
I also argued the
ACA’s near-universal coverage provisions reflect a sharp move away from social
welfare policy’s longstanding attempts to separate the worthy from the unworthy
poor, in part through behavioral requirements and in part through demographic
limits on which low-income people may qualify for aid. This is in part a more generalized version of
Abbe Gluck’s point about shifting the framing from individual responsibility
toward social solidarity. It may prove
to be limited to health care, but the broader legitimation of empathy for
childless adults at least opens up lines of argument that previously had been
inconceivable in much of the country. NFIB v. Sebelius partially restored the
categorical limitations of the old Medicaid, but by triggering state-level
battles over Medicaid expansion it allowed the argument about demographic
limitations on empathy to be replicated under conditions favorable to social
solidarity (e.g., with the federal
government bearing the vast majority of the cost and with hospital and business
lobbyists aligned with progressives).
Although a significant minority of states still have not embraced the
ACA’s Medicaid expansion, opponents in most states have largely avoided direct
attacks on the worthiness of childless adults.
Advocates of
repeal-and-replace bills tried to argue that projected coverage losses were not
real because they reflected individual choices to disenroll – and were widely
ridiculed for doing so. And having this debate
in the context of insurance rates cast the spotlight on the most sympathetic
set of childless adults: those in late
middle-age. The Trump Administration
seems poised to grant some states Medicaid waivers that will impose various “worthiness”
tests on Medicaid recipients; the reception that political and legal attacks on
these waivers receive will tell us much about how far we have moved toward
non-categorical social compassion.
The third area
where I argued the ACA had transformed public law was taxation. The ACA’s intricate premium subsidy system
administered through the federal income tax system seemed a forceful rejection
of the notion of populist simplicity exemplified by the Tax Reform Act of 1986 and
undergirding persistent public support for payroll taxes and “flat tax”
proposals even from lower-income workers who fare much better under graduated
income taxes.
The House
Republicans attempted to invoke populist simplicity when they argued against
tying their stripped-down premium subsidies to income. This compounded the impact of their huge
withdrawal of funds so severely that they reintroduced a tepid means-test in
their final bill. A better test of the
viability of populist simplicity will come in the impending debate on tax
legislation. Republicans are making invocations
of 1986-style reform a mainstay of their argument for passing huge upper-income
and corporate tax cuts. If this blows up
in their faces, populist simplicity will be badly wounded.
Finally, I argued
that the ACA represented a dramatic deterioration in the line between public
and private. Private industry’s needs
heavily influenced the ACA’s structure, provided the main conduit for providing
its benefits, secured a central role in making substantive decisions about the
extent of coverage within broad standards for actuarial value, and pressed
regulation into service as a means of redistribution. Republicans pushed back against this
comingling of public and private with complaints about excessive market
regulation and about forcing men to pay for policies with maternity
coverage. So, indeed, did some Democrats,
with their renewed promotion of a single-payor plan. It is difficult to see attitudes about
privatization played a significant role in defeating “repeal-and-replace” or
that they will be prominent in single-payor’s continued failure to gain
traction. On the other hand, the ACA’s
public-private model facilitated strong industry opposition to Graham-Cassidy
and some of its predecessors. And the specific
question of regulatory redistribution received enough attention that similar
attacks seem less likely to prevail in the future.
In sum, a full
accounting of the Affordable Care Act’s constitutional significance must await
its entrenchment, which may be years off.
Nonetheless, the struggles of the past year offer tantalizing hints of
some fairly dramatic changes in the substance of, and our discourse about, public
law.