The modernization of American public law: health care reform and popular constitutionalism.

• Author: Super, David A.
• Position: Introduction through III. The Affordable Care Act's Redefinition of Public Law A. Reassigning Roles in Federalism 1. The New Deal's Fiscal Federalism, p. 873-914

INTRODUCTION I. THE ROLE OF STATUTES IN POPULAR CONSTITUTIONALISM A. The Erosion of the Court-Centered Model of Constitutional Change B. The Elements of a Constitutional Moment C. Relating Popular Constitutionalism to Article V D. The Enforcement of Popular Constitutionalism II. THE HEALTH CARE REFORM BATTLE AS A CONSTITUTIONAL MOMENT A. The Consensus That the A CA Represents New Constitutional Law B. The Limited Role of Federal Constitutional Adjudication C. The Prospects for the ACA's Political Demise 1. Federal legislation 2. State implementation D. Complicating Factors at the Constitutional Moment III. THE AFFORDABLE CARE ACT'S REDEFINITION OF PUBLIC LAW A. Reassigning Roles in Federalism 1. The New Deal's fiscal federalism a. Justificatory theories b. Macroeconomic management c. Models of federal-state administration 2. The ACA's federalism B. Modernizing the Social Insurance Constitution 1. The disparate lineage of U.S. social insurance 2. The three-tier social insurance system 3. Program design a. Eligibility determination b. Program administration 4. The ACA's transformation of social insurance C. Health Care Reform and Principles of Taxation 1. The New Deal's populist revenues policy 2. Reviving populism: the Tax Reform Act of 1986 3. The ACA's repudiation of populist tax purity D. Privatization of Public Law 1. Post-New Deal tensions surrounding privatization 2. The ACA's redrawing of the public-private line CONCLUSION INTRODUCTION

Implementation of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) (1) would profoundly affect tens of millions of people's ability to get health care. It would set one of the largest segments of the economy on a dramatically new course, to a destination no one can predict with any confidence. And it would transform the politics of, and options for addressing, the federal budget deficit. These implications, however, may turn out not to be the most important issues at stake in the fierce struggle over whether to allow the ACA to take full effect.

Instead, the struggle over the ACA is one of the rare "constitutional moments" that transform public law for generations to come. The Supreme Court's decision upholding the ACA's mandate to purchase insurance but granting states the option to continue receiving Medicaid funds without implementing the ACA's Medicaid expansion (2) is certainly one of the most important decisions in decades in several important areas of constitutional doctrine. Yet that decision is unlikely to be the most important constitutional result of this episode.

This country has not seen a constitutional moment of this kind since the civil rights legislation of the mid-1960s. Although the attempt to create a more broadly egalitarian society in the 1970s-exemplified by the proposed Equal Rights Amendment and attacks on de facto segregation in the North-could have been another such moment, it failed to achieve the broad consensus necessary to change our fundamental law. Similarly, the Bush Administration failed to make lasting changes in our basic principles of governance in the wake of the 9/11 attacks: its agenda of executive dominance was slowed in Congress and the Court and eventually repudiated in the elections of 2006 and 2008.

If the ACA succeeds-an outcome the Supreme Court's decision and the 2012 elections have influenced but hardly decided-this episode will change fundamentally the terms of this country's social contract. This social contract, as amended by the results of this battle, will shape the future of public law in ways extending far beyond the health care sector. Far more than the vast majority of Supreme Court decisions, and exceeding even the constitutional amendments adopted over the last ninety years, the American electorate's verdict on the ACA will shape public law for decades to come in areas far removed from health care. The opposite result-the ACA's implementation stalling and eventually being rolled back-would not by itself have the same effect in transforming the constitutional order: the failure of constitutional consensus is not analogous to the achievement of one. It would, however, offer the ACA's opponents a golden opportunity to initiate a constitutional revolution of their own.

Whatever one may think of its merits, the ACA's design was an extraordinary feat; its enactment more so. Many of the most obvious means of achieving its goals, such as a single-payer plan or government-coordinated group purchasing (the failed Clinton plan from 1994), were off the table politically. Although most pathbreaking social legislation of the past-and, indeed, all major initiatives during the previous administration-had relied on deficit spending, the conservative Democratic votes required for passage required that it include full financing. Moreover, most obvious revenue-raising measures, certainly including any increases in tax rates, were politically unacceptable. Advocates had long claimed that health care reform would produce efficiencies and savings through the reduction in bureaucratic overhead, yet dependence on votes from the major insurance companies' home states ruled out a frontal assault on the biggest locus of inefficiency and waste. In addition, because near-universal insurance coverage was essential to the viability of the ACA's economic model-and to the support of important provider groups such as hospitals-many of the kinds of benefit cuts commonly used to meet budgetary targets in other programs (3) were also unavailable. And because Republicans gained the ability to block passage of ordinary legislation in the Senate partway through the process, the legislation had to be written without the benefit of a conventional conference committee, with any modifications to the Senate-passed version having to meet the arcane and rigorous restrictions of reconciliation. (4)

Designing legislation that could thread these multiple political, economic, fiscal, and procedural needles forced the ACA's architects to reexamine many longstanding assumptions in public law. The severity of the constraints they experienced forced them to take on political battles that any sane politician would have preferred to avoid under other circumstances. The Democratic Party's political imperative to pass the centerpiece of its agenda brought powerful forces to bear in support of revolutionary changes in the structure of public law that the political mainstream ordinarily would have given a wide berth.

Just as importantly, the ACA's high salience has meant that these battles are being fought out before the entire U.S. electorate. Insiders may regard the 1985 Farm Bill (5) as having reversed a half century of settled agricultural policy, but the general public was not involved and hence could hardly be said to have made any lasting commitments. When interest group coalitions realigned, politicians were free to jettison the principles agreed to a few years earlier. (6)

Not so with the ACA: opponents from left and right place its provisions under powerful microscopes and raise loud criticisms of any and all perceived flaws. With the Republican Party, a number of powerful industry groups, and some single-payer advocates seeing its passage as disastrous to their interests and its implementation even more so, no plausible concern has gone unarticulated for lack of resources. Even since it was enacted, the ACA was a central issue in the 2010 and 2012 election campaigns and surely will be again at least in 2014. In the wake of the Supreme Court's decision on Medicaid and with the refusal to establish insurance exchanges or allow Medicaid expansion a banner of conservative orthodoxy for ambitious Republican politicians, whether to participate in the ACA has become a major issue in state politics, too.

Although polling to date has found the public sharply divided on the ACA, (7) people clearly are paying attention and will ultimately render a definitive verdict on the law. Despite strong lingering misgivings about the ACA, the electorate narrowly reelected its champion over a challenger who would have repealed it. And regardless of who wins the 2014 elections, the ACA will not be fully and securely implemented unless and until a substantial majority of the electorate embraces its departures from our prior understandings of the role of public law: only then will its opponents find the political costs of continued attacks untenable. Even well-designed initiatives of the ACA's scope almost inevitably suffer serious problems in their early implementation--and the political and procedural compromises required to enact the ACA produced a complexity likely to compound those woes.

Conversely, even if an anti-ACA Republican wins the White House in 2016 and sweeps in a broad array of Republican congressional candidates with him or her, Democrats will retain more than enough votes in the Senate to filibuster the ACA's repeal. (8) Even if that President undermines the ACA's implementation administratively, Senate Democrats likely will not accept the ACA's permanent repeal unless they become convinced that the electorate has turned so decisively against the law that the possibility of future implementation is a powerful vote producer for Republicans.

Either way, the ultimate verdict on the ACA's reshaping of public law will be a genuinely popular one. And once achieved, it will be a powerful precedent that the winners can invoke, and that the losers must constantly seek to distinguish, in crafting other forms of public law wholly unrelated to health care.

Once the ACA's final fate is known, advocates on each side will no doubt have much to say about what principles they believe to have been proven. These self-interested interpretations will deserve little weight. Most obviously, the authors will no doubt be expanding or shrinking their assessments of the scope, or even existence, of a constitutional moment based on whether their side...