Health insurance reform and intimations of citizenship.

• Author: Hunter, Nan D.

INTRODUCTION I. SOCIAL INSURANCE AND THE EPISTEMOLOGY OF CITIZENSHIP A. The Obligations of Citizenship B. Participation Rights and Citizen Consumers C. Social Security II. THE INDIVIDUAL MANDATE AS LINCHPIN AND SIGNIFIER A. Economic Necessity B. A Signification Contest Between Economic Liberty and the Social Compact III. CITIZENSHIP PRACTICES AND THE AFFORDABLE CARE ACT A. The Concept of "Citizenship Practices B. The Design of Exchanges Under PPACA 1. Regulation 2. Public or Private Forms 3. Information Requirements and Consumer Participation a. Providing Consumer Information b. Seeking Consumer Input 4. Summary C. Social Meanings of PPA CA CONCLUSION Illness is the night-side of life, a more onerous citizenship. Everyone who is born holds dual citizenship, in the kingdom of the well and in the kingdom of the sick.

Susan Sontag (1)

INTRODUCTION

Sometimes what is implied and inferred can be as important as what is stated. In this Article, I argue that the political debate that preceded the enactment of the Patient Protection and Affordable Care Act (PPACA), (2) as well as the legal debate that now swirls around the question of its constitutionality, mask a foundational question about national identity. PPACA, of course, does not literally constitute or reconstitute citizenship (although it does require legal residence as the price of admission). (3) But it creates the potential for broad public conversation--as has never before occurred in the United States--regarding the question of what the relationship should be between membership in the American community and meaningful access to health care.

At face value, PPACA primarily seeks to make the individual and small-group health insurance markets rational and workable, to fill the enormous gap that has existed in coverage, and to create insurance exchanges to regulate quality and police access. (4) Upon full implementation, it will achieve nearly universal, but also probably quite uneven, coverage and will perpetuate a deeply fragmented model of social insurance. If one imagines the health care system as a political domain, with the various institutions and subsystems as components, PPACA is less like our Constitution and more like a reinvention of the Articles of Confederation. Under PPACA, health insurance in the United States will remain a federated collection of risk pools, located in workplaces, public systems, and the new exchanges.

Nonetheless, the debate that has accompanied PPACA's adoption is about something bigger than spending curves, comparative effectiveness, or even medical-loss ratios (not that any of those should be considered trivial). The deep structure of this hyper-technical statute gestures to the existence of a health care universe that, in Habermasian terms, could be its own lifeworld. (5) For persons with chronic diseases, the health care system truly becomes a world unto itself. For others, it may be more like a foreign country visited for an intense but brief period of time, or perhaps one to which we pay little attention. (6) Although the internal operations of the health care universe are seldom thought of as political, its power is such that, upon entry, it may bring us life or death, profit or poverty', autonomy or dependency.

In the interface between the health care system and the legal system, multiple legal paradigms are in play. For questions of access to care through insurance, a mixture of contract and social welfare principles dominate, implicating norms of social solidarity as well as the exchange of defined promises and entitlements. As Lawrence Mead has noted, social welfare programs that incorporate both benefits and reciprocal obligations provide individuals with an "operational definition of citizenship." (7)

PPACA creates a new social welfare and insurance program that redesigns access to health care. Its precise impact on the social meanings associated with individual health and the health of the nation is difficult to predict, but it almost certainly will be powerful. A discourse on belonging, rights and obligations--a discourse on citizenship--is likely to evolve as the effects of the reform take hold. If that occurs, the question will not be whether PPACA will provide some operational definition of what we understand to be the scope of social citizenship, but how it does so; not if there will be some ethic of rights and obligations that will develop around the new law, but what the content of that ethic will be. As in real, rather than metaphorical, citizenship, belonging in the reformed health care system will be defined in part by those who are not permitted to belong, and rights will be defined in part by their circumscription. The determination of the validity of the individual mandate, which is occurring in the current litigation challenging the constitutionality of PPACA, (8) will profoundly shape the nature of its ethic of obligation.

The debates about PPACA illustrate that constitutional concepts are intertwined with narrative understandings of government authority and individual rights and duties. The trope of the "living Constitution," for example, began with Franklin Roosevelt, who asserted that we have a "living Constitution" as part of his argument that the Depression necessitated a more capacious scope for executive branch authority. (9) More recently, the phrase has figured prominently in debates over originalism and has been invoked as an interpretive premise for justifying heightened judicial review of laws curbing individual rights. (10) PPACA may usher in yet another dimension of a "living Constitution": not as a more expansive understanding of government power or of individual rights, but of our shared obligations to one another.

This Article anticipates how the new health governance structures that PPACA creates may reshape the social meanings, in addition to the finances and mechanics, of the American health system. I develop a concept of "citizenship practices" to describe the components associated with the relationship between the individual and the collective. I argue for using citizenship practices as a substitute for the overused metaphor of citizenship and as a way of capturing the dynamic of belonging, rights, and obligations. This dynamic exists in multiple social and political locations beyond the terms of the legal status of an individual with a particular sovereign state, and thus the frame of citizenship practices offers a better conceptual tool for understanding the social meaning of new patterns of behavior and belief.

In analyzing citizenship practices related to PPACA, I address how the process by which PPACA creates new institutions will shape the actions of individuals interacting with the health system, including their participation in various, usually localized institutions of governance. These new regularized practices have the potential to lead to new discourses and understandings about the interrelationship between individualism and collectivity, and about the public and private dimensions of the health system. The concept of citizenship practices is intended to capture both the new activities and the new consciousness.

Of greatest importance to this emerging discourse is the individual mandate portion of PPACA. (11) Under the Act's "minimum essential coverage" provision, all but a small number of Americans must either purchase health insurance or pay a penalty. (12) The individual mandate requires most U.S. residents to obtain health insurance for themselves and their dependents no later than 2014; those who do not comply will be subject to a tax penalty. (13) Enrollment in most private sector health plans will satisfy the mandate; acceptable plans include employer-sponsored policies, (14) policies sold on the individual market, existing health plans grandfathered into the new regulations, or any other plan or policy providing "minimum essential coverage" as defined by the Secretary of Health and Human Services. (15) Those who enroll in public plans such as Medicaid or Medicare will also be in compliance. (16)

Part I of this article provides a framework for analyzing the relationships between citizenship concepts and social insurance systems such as PPACA. I describe the inexactitude of both theory and law as to the obligations of citizenship in the United States and discuss the ways in which a tradition of consumer citizens has filled in some of the gaps in the social meaning of citizenship. I also examine the role of social insurance programs, specifically assessing the Social Security system to demonstrate how a concrete model of social citizenship can develop.

Part II turns to the specific example of PPACA and examines both the structural and symbolic roles played by the individual mandate. I argue that the current litigation over the constitutionality of PPACA has generated a contest of signification between the competing values associated with economic liberty and the social compact. Thus, while the Supreme Court will decide whether the individual mandate is valid based on its interpretation of congressional power under Article I, the popular understanding of this debate is much more grounded in a contest of meaning over how much the individual can be forced to participate in a social insurance system.

Part III elaborates on the concept of citizenship practices and its usefulness in analyzing structures for participation in American society. I explain the concept of citizenship practices as referring to regularized behaviors and interactions with a system of governance and a coherent (although not necessarily universal) set of beliefs about the meaning of those behaviors. I then examine specific and concrete governance issues that must be addressed in the implementation phases of PPACA and argue that the resolution of those questions could enhance or inhibit an understanding of PPACA as a new form of social citizenship in the United States.

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