American exceptionalism and the healthcare reform debate.

AuthorRabkin, Jeremy
PositionAnnual Federalist Society National Student Symposium

Two generations ago, discussion of "American exceptionalism"--at least among social scientists--came down to one great question: Why no socialism in America? (1) By the 1980s, however, even self-described socialists in Western Europe had embraced the benefits of markets and privatization. (2) Soon after, the Soviet empire collapsed and full-scale socialism was largely discredited. (3) America no longer looked particularly unusual in its broader economic patterns. So the "exceptionalism" question dwindled down to: Why no national healthcare in America? (4)

The Obama administration tried to give an answer: Yes, we can! (5) Then we did--enact the Patient Protection and Affordable Care Act of 2010 (ACA). (6) The public reaction was: Maybe not. Public opinion polls have shown that a persistent majority of Americans do not favor ACA. (7) So the question about American exceptionalism can now be rephrased: Why is national health insurance still so controversial in America? I want to offer an answer in three parts, looking successively at background political culture, constitutional architecture, and constitutional culture.

One way to capture the distinctiveness of American political culture is to look at survey responses. The Pew Global Attitudes Project has tracked differences in outlook among peoples in various countries. (8) A few years ago, they asked respondents in a survey whether "success in life is pretty much determined by forces outside our control." (9) In every major country in Western Europe where they asked this question, the answer was (often by more than two to one): yes, success is determined by forces outside our control. (10) In the United States, people rejected that answer by nearly two to one. (11) The United States is one of the great outliers. It is one of the only two Western countries where an overwhelming majority insists that individual success in life mostly depends on the personal effort of the individual. (12)

That poll does not seem to be an anomaly. It tracks with a number of other findings. Even Europeans in these surveys acknowledge that Americans seem to work harder than people in other countries. (13) Americans believe this about themselves. (14) It is what you would expect of people who think their success depends on their own efforts.

Americans also are inclined to express a good deal of pride in their country--certainly far more than Europeans and, by some surveys, even more than people in developing countries. (15) Whereas sociologists often interpret "nationalism" as a response to feelings of insecurity, (16) that observation does not seem to be the pattern in the United States.

Perhaps this result, too, fits with the larger pattern of American self-confidence. Americans think they can succeed through their own efforts--and they think the country that assures them the freedom to succeed on their own is a fine country. People in other countries, who place more reliance on state bureaucracies to care for them, usually are disappointed with the results. Then they are more likely to think their government or their whole society is to blame.

Add it up and you might infer that Americans want a healthcare system that helps them make their own choices. The Obama administration seemed to recognize this in its initial characterization of proposed reforms: If you like the private insurance you now have, President Obama promised, "you'll be able to keep [it]." (17) Some part of the resistance to the huge and hugely complicated package of "reforms" Congress enacted seems to reflect the realization that this promise has not been honored: Whatever else it does, the new healthcare law constrains the choices of individuals. (18)

But such broad background attitudes are only one part of the story. Another part of the explanation for our current debates is the actual constitutional architecture of our government, federalism in particular. Here I particularly want to mention federalism. Quite a few other countries also have federal systems--or systems they call federal. But the American system is unusual, even among nominally federal countries. You might say the United States is, in some ways, exceptionally federal.

To start with, the United States has fifty states. Canada has only ten provinces. (19) Australia has six states. (20) Germany has sixteen subdivisions (laender). (21) With fifty states, America has many more coordination problems. (22) But our system does not really rely on coordination. In Germany, for example, the parliamentary chamber that represents the laender (the Bundesrat) really does represent the state governments; each land government designates its own representatives in the Bundesrat and then can replace them whenever it chooses to do so. (23) Since the adoption of the Seventeenth Amendment in 1913, voters (rather than state government) elect U.S. senators and the Constitution always has assured the senators a six-year term, regardless of what their home state legislature or governor might prefer. (24)

In Germany, state officials handle almost all enforcement of federal laws. (25) In the United States, the federal government is equipped to implement its own laws. (26) The Supreme Court insists there are limits on how far the federal government can go in forcing states to contribute state officials and state legislation to the implementation of federal schemes. (27)

Among the most telling differences with other versions of federalism is that, in the United States, state governments maintain their own sources of revenue. States have their own sales taxes, income taxes, inheritance taxes, and so on. (28) States also compete with each other in providing different levels of taxation and different levels of services. (29) In most federal systems, federal authorities collect the bulk of taxes and then dispense federal funds to state authorities to implement federal schemes. (30)

There is some of this revenue sharing in the United States too, of course. To take the most familiar example, federal gasoline taxes financed much of the Interstate Highway System, but state governments supervised the actual construction and maintenance of the System (to federal specifications). (31) But states still have to operate, for the most part, on their own resources. In times of economic stringency, states are less keen to cooperate in federal undertakings, even when the federal government provides part of the funding. For example, Governor Chris Christie of New Jersey recently shocked federal officials when he halted work on a long-planned project for a new tunnel under the Hudson River. (32) Even with substantial federal subsidies, he judged the additional financial burdens on his state to be too much for New Jersey taxpayers to carry. (33)

In like manner, we now have states resisting the federal health insurance reform law--not just some states, but a majority of states: Twenty-eight states have launched or joined lawsuits asserting that ACA is in violation of the Federal Constitution. (34) Some of the state officials involved might be suspected of partisan motivation. But they are not all Republicans. (35) Regardless of political affiliation, these lawsuits demonstrate a fact about American federalism: We have a system in which state governments respond to their own political incentives. If they feel voters in their states will support them, they can try to use state authority to fight against a federal program.

State attorneys general, among others, have made a variety of arguments in court filings. These arguments demonstrate a third general point: American constitutional culture supports, and even encourages, this sort of resistance--especially in these circumstances.

The first general argument is that the insurance mandate exceeds the power of Congress to regulate commerce. The Constitution gives Congress power "[t]o regulate Commerce ... among the several States." (36) But the healthcare reform law requires almost all individuals to purchase health insurance, whether or not they are directly engaged in interstate commerce. (37) Even people who are not employed are required to purchase insurance. (38) The mandate extends even to those who dissociate themselves from buying or selling in the regular economy. (39) If you are a survivalist in the mountains, living on what you can gather in the woods, you are still subject to this mandate. If Congress can force such people to buy insurance--in the name of regulating commerce--then there is no limit at all on the power to regulate "Commerce ... among the several States."

A similar argument involves the power of Congress to impose new mandates on the States. The legislation requires states to expand coverage under the existing federally-sponsored Medicaid program. (40) Medicaid currently offers federal subsidies to induce states to administer a program covering medical costs for low-income residents. (41) The "inducement" to expand coverage under the new law is to threaten the withdrawal of federal assistance for Medicaid--upon which states have come to rely--unless states commit to wider coverage with vastly increased costs. (42) Critics (and some state governments) insist this breaches the traditional line between offering financial inducement to states and imposing coercive conditions on states to participate in federal programs. (43) These critics argue that, if such coercion is permissible, there is no effective limit on congressional power to force States to cater to federal demands; the Tenth Amendment, reserving some powers to the States and the people, is a dead letter. (44)

There is no need to belabor these arguments. Whether they ultimately persuade five Justices of the Supreme Court remains to be seen and is not essential to the analysis offered here. They show that the Constitution has force in American political life, apart from what the courts might say. To put the point a slightly different way, Americans do not...

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