EXECUTIVE DYNAMISM IN HEALTHCARE: A RICH HISTORY OF THE EXECUTIVE BRANCH AND ITS USE OF POWER IN PUBLIC HEALTH AND ACCESS TO CARE INITIATIVES.

• Author: Balasubramanian, Sai
• Position: Symposium on Executive Power

1. INTRODUCTION

   Famous philosopher and political thinker John Locke articulated one of the fundamental theories upon which all successful, modern democracies have thrived. In his second treatise, Locke proposed: "The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be [employed] for preserving the Community and the Members of it." (1) Locke continued:

   For the Legislators not being able to foresee, and provide, by Laws, for all, that may be useful to the Community, the Executor of the Laws, having the power in his hands, has by the common Law of Nature, a right to make use of it, for the good of the Society, in many Cases, where the municipal Law has given no direction, till the Legislative can conveniently be Assembled to provide for it. (2) Locke's philosophy is a straightforward treatise on the requirements of a functioning government; while the legislature dictates the laws of the land, often retroactively, a need exists for a specific office dedicated to creating viable change in the nation and enforcing the laws already in place, thereby ultimately preserving the rights and welfare of the people.

   The American legal tradition delegates this power to the Executive Office, an entity which not only proposes and enumerates specific laws and changes to be made, but is also responsible for the oversight, governance, and execution of the laws of the land. (3) Agencies or ministries, acting as extensions of the Executive Office, typically execute and enforce the laws. (4) Created solely for this enforcement purpose, these administrative agencies typically answer directly to the executive. (5) In the larger scheme of government, these agencies, and the executive branch as a whole, work in conjunction with the legislative and judicial branches. The most significant aspect of this form of government is that it functions "to prevent the concentration of power and provide for checks and balances." (6) As it has been repeatedly noted, "[a]rguably no political principle has been more central than the separation of powers to the evolution of constitutional governance in Western democracies." (7)

   The United States has long been a global beacon for embracing a powerful yet balanced democratic system, with an especially robust and dynamic executive branch. In the United States, the executive branch derives its authority from Article II of the Constitution, which enumerates that "[t]he executive power shall be vested in a President of the United States of America." (8) Broadly speaking, the Constitution provides the executive branch with a variety of powers and privileges, including some that infiltrate the powers enumerated to the other branches. These powers include: (1) legislative powers that arise from the Executive Officer's ability to create legislative agendas, veto legislative actions, and promulgate executive orders which may act as enforceable laws themselves; and (2) judicial powers that include the ability to appoint officers and officials and to pardon individuals for crimes. Inherent executive powers include acting as Commander in Chief, giving the President the ultimate authority for the country's armed forces and troops; conducting foreign affairs by ratifying and enforcing treaties and other binding international agreements, both through the diplomatic process and through work with the legislature; and appointing senior officials, cabinet members, and heads of the Executive Offices and departments who enforce the nation's laws and regulations. (9)

   Often, the Executive Officer will bring specific agendas with them when they first take the helm of power; that is, most executives aim to enact or promulgate specific policies they deem beneficial for the country and the people. Thus, Executive Officers will cultivate and foster a specific political environment and relationship with the legislative branch in an attempt to promote this vision. (10) This specific facet of executive power has been especially recognized in America. As scholars note:

   More than any other actor in the U.S. political arena, the president can focus the nation's attention--and its major political actors' attention--on a given issue.... This influence may not extend directly to the actual policy alternatives chosen. However, given [that] a complex assortment of competing policy problems exists at any one time, and given that all or most of these policy problems will have advocates attempting to push "their" issue to preeminence, the ability to set the policy agenda alone gives the president considerable political leverage. (11) II. HEALTHCARE

   In the modern age of rapid growth and globalization, governments across the globe are facing a multitude of issues and have robust agendas to fulfill. These issues often involve sensitive and nuanced complexities ranging from foreign relations to addressing common national issues contemplated by any functioning society. Such common national issues include: quality of life metrics, employment standards, national economics, and access to healthcare among others.

   Healthcare is one such political silo that has increasingly dominated the agendas of countries globally. Over the last few decades, developed countries have exponentially increased healthcare spending--indicating an immediate need for reforms in order to deter a systemic collapse. (12) As the Organization for Economic Cooperation and Development (OECD) (13) so aptly describes it, "going over budget on health spending remains endemic in most OECD countries. Maintaining today's healthcare, and funding future medical advances, will be difficult without major reforms that will require health and finance ministries to work together." (14) Ultimately, these changes have to come in dynamic, tailored methods since each government has a different idea of the perfect approach to healthcare. Each country's healthcare approach will ultimately determine their respective national agendas. For example, many countries support a singlepayer system, while others prefer the more competitive arena of a multi-payer system; not surprisingly, each system inevitably creates somewhat different results in health outcomes and spending. Similarly, healthcare policy at a national level touches a wide variety of topics including: healthcare coverage, disaster relief and planning, food and drug safety and administration, and scientific research and innovation. Ultimately, every country has the autonomy to focus its efforts on one of these areas over another, depending on its respective societal demands and needs.

   The United States is at an especially complicated juncture concerning healthcare. Though all the previously mentioned issues are equally pertinent to the American healthcare political agenda, the most prevalent issue is the debate concerning the efficacy of both the fundamental infrastructure and the setup of the American healthcare system. This is especially important regarding healthcare mandates and the role of the government as a potential payer. Contrary to popular belief, this issue was not a novel phenomenon introduced by Barack Obama during his tenure as President; instead, contemplating the government's role in healthcare has been a central part of American political thought for more than one hundred years. (15)

   Ultimately, the conundrum stems from the fact that the United States has neither a single-payer system (ensuring a "national health insurance system"), nor a "multi-payer health insurance fund"; instead, it operates at a "hybrid" between these models, using funding contributions from private entities, businesses, local governments, and the federal government. (16) In reality, this involves the following:

   In 2014, [with a population of] 283.2 million people in the U.S., 89.6 percent of the U.S. population had some type of health insurance, with 66 percent of workers covered by a private health insurance plan. Among the insured, 115.4 million people, 36.5 percent of the population, received coverage through the U.S. government in 2014 through Medicare (50.5 million), Medicaid (61.65 million), and/or Veterans Administration or other military care (14.14 million) (people may be covered by more than one government plan). In 2014, nearly 32.9 million people in the U.S. had no health insurance. (17) Overall, the United States has a complicated healthcare system. When compared to the international community, this leads to unique results in both health outcomes and healthcare spending. Ultimately, the differences in health outcomes are "critically important," but "the much greater quantitative disparity between the US and other industrialized nations is healthcare spending. In 2004, Britain spent $2,508 per person on healthcare, versus France's $3,159 and Canada's $3,165, according to the OECD data. The costs of healthcare per American? A staggering $6,102." (18) Due to these disparities, and its somewhat unique system, the United States has received increased--and perhaps unsolicited--attention on its healthcare system.

   President Barack Obama promised to permanently reform the American healthcare system when he took office. His intentions were clear; in his speech to Prince George's Community College in Largo, Maryland, the President said:

   [T]ens of millions of Americans [were left] without the security of health insurance. By the time the financial crisis hit, most folks' premiums had more than doubled in about a decade. About one in 10 Americans who got their health care through their employer lost that coverage. So the health care system was not working. And the rising costs of health care burdened businesses and became the biggest driver of our long-term deficits. (19) With those remarks in mind, President Obama sought to pass the Patient Protection and Affordable Care Act (known more commonly as the Affordable Care Act, or the "ACA" for short), in a gesture that would become known as one of "the...