America's exceptional safety net.

• Author: Mahoney, Julia D.
• Position: Federalist Society National Student Symposium 2016

Two notions have achieved conventional wisdom status in many quarters. First, that the United States is a safety net laggard when compared with other highly developed nations; (1) and second, that the obvious thing to do to improve our safety net is to become more like those other nations. (2) In my judgment, both claims are wrong. Far from being a "welfare state laggard," (3) the United States has a rich tradition of a strong, unique safety net, (4) one that has over the course of the nation's history reflected a distinct American identity. At its best, America's safety net is bouncy (5) and a key component of what, at least until fairly recently, has been an extraordinarily entrepreneurial and dynamic society. (6)

That said, right now our safety net is not as bouncy as it once was, and not as bouncy as it has the potential to be. (7) In what follows, I detail some of the reasons why what should be a springy safety net--catching those in distress and then propelling them back up--is looking downright frayed these days. After describing the challenges we face, I offer some "outside the box" suggestions (8) that aim to draw on the United States' exceptional institutions to help reweave our social fabric.

So, first, why do I not see America as a safety net laggard? The answer is that unlike many policy experts and academics have had a way-too-cramped definition, in defining "safety net" I take into account the full panoply of United States institutions. When we carefully consider programs such as government-provided or government-subsidized health care and health insurance; Social Security, private pensions, tax-advantaged retirement accounts, and public expenditures on education, (9) the United States does not trail peer nations. (10)

It is true that many of these institutions differ from the means-tested government programs for the poor and near-poor like the Supplemental Nutrition Assistance Program (SNAP) (11) that are often the first thing to leap to mind at the phrase "safety net." (12) But when we ponder what prevents and ameliorates poverty, we have to view matters with a far wider lens. The fact is that as U.S. society has evolved, programs with benefits that flow substantially--even primarily--to those other than the poor and near-poor are essential for preventing or allaying poverty. (13)

Perhaps most striking, when comparing the United States with other rich nations many neglect to account for the so-called "third sector" of nonprofit firms that undergirds civil society. One of the courses I teach at the University of Virginia School of Law is Nonprofit Organizations, and each time I teach it I am struck anew by the beneficence of individual and institutional donors in the United States. This tradition of benevolence, which predates U.S. independence, (14) remains strong today, as Americans of all political stripes give time, money, and expertise to a wide range of worthy causes in a way and to a degree that citizens of other highly prosperous nations simply do not. (15) These institutions of civil society often substitute for government, providing services similar to those provided by governmental institutions, but a number do even more. (16) They provide important goods and services, including religious instruction and support, that the government cannot. (17)

Even in areas where the United States provides safety net services that have direct analogues in other developed nations, we are exceptional. Examining Medicare and Medicaid, we see that there is far more respect for individual needs and preferences than is the case in most other societies. (18) It is interesting to me that the Independent Payment Advisory Board (IPAB) contained in the Affordable Care Act has incited so much opposition, (19) because it was modeled on institutions in other...