THE MODERNIZATION OF AMERICAN PUBLIC LAW: HEALTH CARE REFORM AND POPULAR CONSTITUTIONALISM
| By Super, David A | |
| Proquest LLC |
The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by
Despite the Court's ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic principles that guide the development of federalism, social insurance, tax policy, and privatization for decades to come.
In each of these areas, the
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
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
If the ACA succeeds-an outcome the
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 offthe 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 programs3 were also unavailable. And because Republicans gained the ability to block passage of ordinary legislation in the
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
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 Bill5 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 leftand right place its provisions under powerful microscopes and raise loud criticisms of any and all perceived flaws. With the
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
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 prevailed. In addition, none of their views will have been open to scrutiny while the debate was underway. Those wishing to assert that a constitutional change has occurred should be expected to lay their understandings of that change before the public while the public is weighing the outcome.
This Article follows in the tradition of writers seeking to lay out the expected implications of proposed constitutional changes in the midst of debates about whether to ratify those changes.9 This both seeks to contribute to the current debate-alerting the participants to its broader implications and seeking to provoke those on either side to embrace or renounce those implications-and to record an interpretation of the stakes while neither side knows the final outcome with sufficient certainty to adopt wholly opportunistic positions.
Remarkably, although the ACA was written and enacted entirely by Democrats, its transformation of public law is by no means in a manner clearly identified with the
Part I surveys the extensive theoretical literature on popular constitutionalism. It finds recognition that, at least since the
Part II analyzes the ongoing struggle over whether to implement the ACA. It finds the threats to the law were never limited to constitutional invalidation or its supporters' defeat in the 2012 elections. Instead, the battle is likely to continue for several years, both federally and in the states. This Part proceeds to assess whether the resolution of the battle over the ACA can properly be seen as a constitutional moment and answers in the affirmative.
The remainder of the Article extends the analysis of the ACA's impact to the "constitution of statutes" that has guided our public law since the
The Article concludes with some speculations about how the constitutional law being made in the struggle over the ACA might affect other important constitutional issues of our time, including some in areas seemingly far removed from health care reform.
I. THE ROLE OF STATUTES IN POPULAR CONSTITUTIONALISM
This country has long pursued constitutional change beyond the confines of Article V. Arguments that fundamental, constitutional issues are at stake have become fixtures in the presidential campaigns of both parties.12 Although Republicans occasionally mention amendments to outlaw abortion and same-sex marriage or to require balanced budgets, neither party's constitutional rhetoric refers primarily to the Article V process. Instead, the focus is on appointments to the
The question, then, is not whether this country's fundamental law can change without invocation of Article V. It is, instead, whether We the People should have a role in those changes beyond the attenuated process of electing Presidents who we hope will succeed in nominating the kinds of Justices we imagine will share our constitutional agendas. This Part argues that We the People can, should, and in practice do on rare occasions, change this country's fundamental law through an extraordinary process mediated by the three branches of the federal government but driven by the People through a series of ratifying or rejecting elections. This understanding of popular constitutionalism thus is both descriptive of how we actually have received and augmented our constitutional legacy and normative in its belief that this is how a democratic society ought to behave.
A. The Erosion of the Court-Centered Model of Constitutional Change
In recent years, scholars have increasingly questioned the traditional account of U.S. constitutionalism as beginning and ending with the written document that originated in 1789 and the
Uniting these approaches is the conviction that We the People remain active in shaping the fundamental contours of our nation even as Article V has largely fallen into disuse. Ackerman summarizes the core belief:
This country's Constitution focuses with special intensity on the rare moments when transformative movements earn broad and deep support for their initiatives. Once a reform movement survives its period of trial, the Constitution tries to assure that its initiatives have an enduring place in future political life. Elected politicians will not be readily allowed to undermine the People's solemn commitments through everyday legislation. If they wish to revise preexisting principles, they must return to the People and gain the deep, broad, and decisive popular support that earlier movements won during their own periods of institutional testing.21
Popular constitutionalism in this sense is deeply democratic. It seeks to give the electorate the means to adjust our constitutional arrangements for changing circumstances and norms, and to do so openly, rather than leaving that power with unelected judges.22 Popular constitutionalism finds considerable irony in theories of the Constitution that criticize the exercise of power by unelected judges23 while giving them exclusive power to modify our fundamental law through nominally interpretive decisions.24
Popular constitutionalism embraces the idea that fundamental law is extraordinary and enduring, that it is not a tool for addressing relatively routine problems of public life. On the other hand, while it agrees that constitutional moments are rare, it rejects the conventional textualist account's implicit claim that significant constitutional moments have all but disappeared. We thus have two tracks of lawmaking-one for the vast majority of important but relatively low-salience decisions made without broad public engagement and another that "imposes specially rigorous tests upon political movements" and rewards those that pass with "the heightened sense of democratic legitimacy" of speaking for "We the People."25
Ackerman makes his argument on several levels. Textually, he notes that Article V, unlike its predecessor provision in the Articles of Confederation, makes no claim that its procedures are exclusive and that most early readers did not regard its procedures as exclusive.26 This suggests that the written Constitution is a vitally important but incomplete statement of what makes this country distinctive.27 Historically, Ackerman shows that popular constitutionalism can trace its roots at least to
Practically, Ackerman notes that, since the Reconstruction Amendments, this country has largely given up on making fundamental law through Article V's formal process for amending the written Constitution but has not stopped making fundamental changes to the basic principles on which the federal government operates.33
However jarring these visions of popular constitutionalism may be to the sensibilities, nurtured in ninth-grade civics, that the U.S. Constitution is a written document amendable only through Article V, this vision of popular constitutionalism is a far cry from the periodic efforts to import one or another favored value into one of the written Constitution's open-textured provisions.34 The current Court occasionally has recognized that principles clearly absent or separate from the written document nonetheless hold constitutional status.35 Indeed, its decision that
B. The Elements of a Constitutional Moment
Scholars of popular constitutionalism have studied past constitutional moments to identify patterns that can provide the basis for rules of recognition for those unusual occasions when the nation comes together to make or amend its fundamental law.36 Each of these formulations includes three elements. First, a constitutional moment must start with some form of public notice that important actors seek to change the nation's fundamental law; this prevents actions in the name of We the People by stealth or by revisionist history. Second, the proposed constitutional change must receive unusually broad public deliberation, seeking to bar elites from amending the constitution by themselves, without public engagement. And third, the process of constitution-making must last long enough to allow opportunities for opponents to seek to revisit and reverse the initial judgment, attempting to prevent hasty decisions about fundamental matters. These three elements provide both a means of weighing competing policies and a way of building legitimacy for the choices ultimately made.37 Each also broadly parallels the practice when the written Constitution is amended under Article V.38
To merit the name "constitutional," statutes must genuinely be extraordinary on many dimensions. They must address the most important issues of their day, they must do so in a decisive manner, they must hold the public's attention during the formulation, and they must achieve broad public reverence afterwards, if not immediately then at least before they slip decisively from the headlines. Few statutes indeed meet these tests. Many are larger than life to those focusing upon them but of little interest to the public; others gain public attention but are crafted as compromises within an established tradition rather than decisive breaks with the past. Attempting to apply popular constitutionalism to statutes that, while significant, lack these attributes trivializes the process and obscures the importance of transcendent statutes like the ACA.
To date, however, the literature on popular constitutionalism has been entirely historical and theoretical: no one has studied a constitutional moment in real time. The battle over whether health care reform will be entrenched or repealed provides a rare opportunity to do so.
C. Relating Popular Constitutionalism to Article V
Ackerman's effort to discern and enunciate the rules this country has accepted for amending our social contract is in important respects deeply conservative. Without it, we are leftwithout a clear limiting principle to explain why we accept the replacement of the Articles of Confederation, the Reconstruction Amendments, and the reinterpretation of the constitution to legitimate the
Article V has shown some utility for addressing discrete issues that have arisen with our Constitution, particularly those involving mechanics. It was a perfectly adequate means of shifting to popular election of senators,40 term lim- iting the presidency,41 curtailing excessive presidential transition periods,42 and reducing uncertainties when the President is unable to serve.43 These isolated mechanical matters, however, are far from our constitution's most important work. Vastly more important is its role in setting the balance of power in crucial relationships, such as those among the branches of government, those between the federal and state governments, those between the races, and those between the government and the People. Article V, which by tradition has been used only to make discrete changes in the Constitution,44 has proven ineffectual at recalibrating these balances: the Reconstruction Amendments provided a highly incomplete attempt to change the balance of power between the races and between the federal and state governments, while most other amendments since the Bill of Rights have not even tried. This shortcoming has become increasingly problematic as the nation has grown in size, wealth, and complexity, with old relationships frequently coming out of balance and new, important ones arising. For example, one of the most important relationships our constitution must balance is between the two major political parties, yet the Framers failed to anticipate them in the written Constitution. Apart from a couple of small changes to honor the electorate's partisan choices,45 this balance has been struck entirely through other means.
The nation thus has kept Article V for addressing mechanical concerns and other issues susceptible to discrete solutions. For readjusting existing fundamental relationships and for establishing a workable balance in newly recognized ones, however, it has had to turn to broad-based popular deliberation. In addition, the expansion, scope, and complexity of federal policy has made it impossible for the public to be informed and involved even in all important aspects of it. The nation could have attempted to set basic ground rules in each important area through the cumbersome mechanism of Article V46 or meekly accepted this loss of popular sovereignty, treating the federal government as a giant black box that makes policy on a vast array of issues with little popular involvement, legitimated by periodic elections fought over a handful of issues. Instead, the nation has developed fundamental principles of public policy through especially prominent and widely debated statutes.47 The terms of these statutes serve as a dividing line between routine, although sometimes quite important, matters that the People have delegated to political elites and those fundamental decisions that may only be changed through broader popular deliberation.
Those insisting that this country's basic law is limited to the written document would seem to bear some burden to explain why that is so when the written Constitution itself makes no such claim. Textualists implicitly apply the contractual doctrine of merger to the Constitution, treating the written document as superseding any other terms that might previously have been accepted between the state and the People.48 Yet the Ninth and Tenth Amendments explicitly negate application of that doctrine.49 Even without them, we should not expect the written Constitution to operate as an integrated and exclusive contract. The English precedents available to the Framers involved constitutionmaking processes that only occasionally yielded written documents. The political philosophy on which the Framers relied derived constitutional principles from visions of natural law, not written documents. Moreover, state constitutions, both at the time of the Founding and since, have been far more detailed in both substance and procedure than the federal document. An observer familiar with these constitutional traditions, when handed our written Constitution, could be forgiven for asking, "Where's the rest of it?"
D. The Enforcement of Popular Constitutionalism
Popular constitutionalism's enforcement, like its origins, is primarily democratic rather than court centered. The constitutional decisions made in this manner do not provide trumps in the sense that the written Constitution does;50 they do not by themselves provide the basis for the Court to strike down legislation. The constitutional themes popular constitutionalism identifies may guide the Court in interpreting the written Constitution;51 these themes also may provide default rules for interpreting ambiguous statutes.52 These sorts of constitutional principles are familiar in our political discourse: people who deny principles adopted in this manner lose their legitimacy. Those attacking statutes that have taken on constitutional status "touch the third rail" or define themselves as "extremists"; when attacks on a statute cease to be regarded as extremist, that statute has lost its constitutional status and may turn out to be highly vulnerable in the world of interest group politics.
Seeing constitutional law solely in terms of authorizations of judicial review is neither originalist nor descriptively complete. Even apart from popular constitutionalism, thoughtful constitutional scholars increasingly are questioning the desirability of judicial review.53 And whether or not one believes that textually driven judicial review is essential for truly constitutional government, it certainly is not sufficient. For example, if Democrats (while in control of
The recent controversy over whether Democrats should have accused House Republicans of proposing to eliminate Medicare55 was at its core constitutional. Both sides recognize that
II. THE HEALTH CARE REFORM BATTLE AS A CONSTITUTIONAL MOMENT
Studying the ACA as an unfolding constitutional moment is appropriate on several levels. First, most obviously, this battle fits theories of popular constitutionalism strikingly well.
The 2008 campaign, in which health care reform was prominent, clearly signaled the outset of a constitutional moment. Although
Understanding the battle over the ACA as a struggle for the hearts and minds of We the People allows an important elaboration upon popular constitutional theory. To date, constitutional movements have been understood as each producing and maintaining their own statutes. Eskridge and Ferejohn's book consists of a chapter for each of several constitutional movements, each of which spawned one or more statutes.58 But no statute figures prominently in more than one of their accounts. The ACA, by contrast, is a sprawling statute with several quite distinct constitutional elements; its entrenchment or elimination thus will answer several pivotal questions at once and represent a new means of engaging in constitutional change.
Moreover, both sides view the debate over the ACA in explicitly constitutional terms. On the left, near-universal coverage is seen as a matter of principle, one for which a wide array of environmental, civil rights, economic, and other high-priority agenda items were sacrificed. Not every important issue is a constitutional one, but proponents suggested that this country was betraying its basic principles by allowing millions of people to go without health care. Their embrace of a plan built on ideas from a right-wing advocacy group59- and quick abandonment of their preferred statist single-payer plan60-suggests a desire to build a broad consensus for a change in fundamental law. On the right,
Finally, and perhaps most importantly, this constitutional moment will be fought out in both federal and state politics. States obviously play a central role in ratifying or rejecting attempts to amend the written Constitution under Article V, but they have not always been directly involved in other constitutional moments. The
This Part surveys the multiple challenges that the ACA still must survive if it is to reach full, stable implementation and, in so doing, fundamentally change our constitution. Conversely, its decisive defeat would represent a constitutional moment of a fundamentally different nature, resolving crucial constitutional questions for generations to come. Contrary to the conventional, Court-centered understanding of constitutional law, this Part views the litigation in the
A. The Consensus That the ACA Represents New Constitutional Law
The struggle to pass the Affordable Care Act was certainly intense, dominating the headlines throughout its tortured journey in
Applying the five-step test that Ackerman gleans from U.S. constitutional history, however, makes clear that this debate is indeed one of those rare efforts to define our country's fundamental essence. The debate began with a clear signal from then-Senator Obama that he sought to make a fundamental change in the nation's legal system.64 He campaigned heavily on health care reform, provoking a debate that was both broad and deep: a large segment of the electorate focused on this issue, and their consideration was both sustained and intense. 65 On the other hand, although he won a large majority in the
The next stage, proposing, involves a reform movement advancing a proposal that seeks to transcend the factional differences in society and make a change in the nation's fundamental law.67 In contrast to many presidential candidates who promise modest rebalancing of certain aspects of public policy or simply better administration-four of the five previous Presidents were former governors-candidate Obama explicitly campaigned as the leader of a movement. Both as a candidate and in the
When
Nonetheless, the ACA's enactment, as momentous as it was, did not seal the constitutional moment. After all, Reconstruction added three amendments to the written Constitution and yet failed to change the practical content of the country's fundamental law.75 To be successful, a constitutional movement must succeed in winning ratification of its achievements in the face of determined efforts to roll them back.76 The potential for a constitutional moment springs from the unusually vehement and multifaceted effort to prevent the ACA from taking effect. The anti-ACA campaign involves both legislative and judicial initiatives, with multiple facets to each. It involves the states, in their broad participation in litigation against the ACA, in passing statutes purporting to annul the ACA's individual and employer mandates, and potentially in obstructing implementation of the law's health insurance exchanges and
The final stage in popular constitutionalism is consolidation, where opponents effectively concede defeat and cease major, active resistance against the constitutional innovation.79 Both sides to the health care debate implicitly concede that, if reform can pass the ratification stage, it will have little difficulty consolidating its place in the nation's constitution. Supporters are confident that the benefits it offers will prove so attractive that they will be impossible to repeal, much as
B. The Limited Role of Federal Constitutional Adjudication
Although the
Moreover, the first ACA case before the
On the other hand, the decision upholding the ACA does not end things. Opponents are mounting additional challenges, attacking both the ACA's overall scheme and seeking to interpret it in ways that would turn implementation into an unpopular nightmare. Should these challenges also fail, the constitutional moment will be set to conclude should the ACA be implemented without a major backlash. Chief
C. The Prospects for the ACA's Political Demise
Ultimately, although one or more branches of the federal government may be the direct agent of the ACA's demise, the fate of such high-profile legislation will be decided by We the People. And although the electorate remained sufficiently open to the ACA to reelect its primary champion, good reason exists to believe that such massive realignments of the legal and practical worlds are likely to face severe implementation problems. The prescription drug benefit added to
1. Federal legislation
Because of the ACA's salience, congressional Republicans can, have, and most likely will continue to extend their campaign against it to a wide range of other legislation. They have denied appropriations for those aspects of the ACA's implementation, including the work of the Departments of Treasury and Labor, that do not have mandatory funding.101 The ACA partially funded implementation by the
This will allow congressional Republicans to follow the familiar two-step process for dismantling means-tested programs that ended Aid to Families with Dependent Children (AFDC) and almost destroyed the food stamp program (now the
In sum, early indications suggest the ACA's supporters have only a very incomplete understanding of the politics of entrenching social benefits.109 Its opponents have leverage to extract an enormous political cost to preserve the ACA, including the devastation of much of the rest of the Democratic agenda. If public support for the legislation remains tepid or deteriorates, parts of the fragile coalition that carried it to enactment may become unwilling to bear that cost.
2. State implementation
A veteran political observer notes that the ACA "is facing more widespread defiance than any federal initiative since the
States' initial decisions on
Thus, states' decisions about the ACA's implementation could plausibly go either way. Each state's actual choice therefore is likely to reflect its electorate's judgment about whether the ACA is compatible with our nation's constitution. If enough states balk and chaos ensues, the ACA could fall even after its implementation in 2014. On the other hand, if implementation goes smoothly in the majority of states, pressure will mount on the holdouts, and We the People will turn a constitutional page.
D. Complicating Factors at the Constitutional Moment
As Ackerman notes, "American elections are never single-issue affairs."121 Each of the last three elections was, in significant part, a referendum on the sagging economy. Fairly uniform projections for tepid growth strongly suggest that the next election will be, too.122 Yet as Ackerman argues, the "bundling" of issues does not make this any less of a constitutional moment.123 First, few past constitutional moments have involved truly pure tests of single issues. For example, Reconstruction failed as much because of the onset of the Long Depression in 1873 and the
With conservatives tying most issues back to the ACA and liberals going all-in in their support of the legislation, it easily possesses the salience and the breadth of public debate required to make constitutional law. The process of entrenchment, too, seems likely to occur rapidly-or not at all. The ACA's opponents clearly appreciate the enormous difficulty they will face terminating health care subsidies once people have begun to receive them in 2014.125 This suggests that the period of vulnerability for this constitutional innovation, like that of the Social Security Act three-quarters of a century earlier, is chiefly the period before implementation. Indeed, just as the Social Security Act became entrenched shortly after it began paying benefits,126 former opponents may come at least to support the ACA and perhaps even to favor expanding it.127 Two successive presidential elections have been fought in large part over the merits of health care reforms, giving We the People direct means with which to ratify or overturn the decision of the elites.128
III. THE AFFORDABLE CARE ACT'S REDEFINITION OF PUBLIC LAW
The Affordable Care Act's success would transform the
As revolutionary as the
Yet despite all of these changes, the
Overall,
Contrary to the image of efficiency-seeking, expertise-driven government many have come to associate with the
In the succeeding decades, this balance between new and old continued to dominate the design of public law. Far from being a sweeping modernizing force, the Administrative Procedure Act ducked many crucial issues- including the entire public benefits system139-and deferred to existing statutory arrangements on most others.140 The first major post-
By the 1960s, the
This advance of economic efficiency and increasing marginalization of traditional values faced sharp criticism, and not just from die-hard nostalgics:
The public interest state . . . represents in one sense the triumph of society over private property. This triumph is the end point of a great and necessary movement for reform. But somehow the result is different from what the reformers wanted. Somehow the idealistic concept of the public interest has summoned up a doctrine monstrous and oppressive. . . .
. . . The great error of the public interest state is that it assumes an identity between the public interest and the interest of the majority.146
Yet by then the process had reached the point of no return:
There can be no retreat from the public interest state. It is the inevitable outgrowth of an interdependent world. An effort to return to an earlier economic order would merely transfer power to giant private governments which would rule not in the public interest, but in their own interest.147
By itself, however, elites' enthusiasm for economic efficiency and bureaucratic governance could not overturn the
The ACA has forced a resolution of this tension. It aggressively brushes away traditionalist ideas entrenched since the
This Part explores four of the most important ways in which the ACA's entrenchment would transform the
A. Reassigning Roles in Federalism
The
But the
Yet as radical as these concepts were, New Dealers sought to avoid affronting traditional state sensibilities. They both minimized the expansion of federal power and concealed the extent to which they were displacing states.151 In the intervening decades, fiscal federalism has grown considerably. It has been constrained, however, by the conceptual and structural limits imposed at its founding.
This Subpart explores the most sweeping challenge to those limits since the founding of modern fiscal federalism. Subpart A.1 reviews the major terms of the
Subpart A.2 shows how both the ACA and the
1. The
The
a. Justificatory theories
The actual motivation for the
b. Macroeconomic management
Unlike states, the federal government is not obliged to balance its budget each year. As a result, the federal government long has taken responsibility for macroeconomic management. Indeed, states' balanced budget rules compel them to engage in procyclical fiscal policy: spending cuts and tax increases during recessions as well as tax cuts and spending increases during expansions.162 This pattern results in states offsetting federal fiscal policy and complicating macroeconomic management. During the current slump, rapid declines in state and local spending have offset a large part of the increase in consumer purchases and business investment since the economy hit bottom, contributing to prolonged stagnation.163
Beginning in the 1960s, federal policy has sought to moderate but far from eliminate the pressure on states to adopt procyclical fiscal policies. The partial deductibility of state and local taxes provides an implicit partial federal match to state tax increases, increasing their effective yield.164 Although states' costs for
Because the specifics of macroeconomic management rarely achieve salience at the federal level, and even less so in the states, little focused effort has been made to reduce or eliminate states' inadvertent hindrance of federal macroeconomic policy. Some changes have helped: in the early 1970s, the federal government assumed almost complete fiscal responsibility for meanstested aid to the elderly and disabled167 (a function whose cost does not vary much with the economic cycle) and for food aid for all low-income people168 (which is highly cyclical). From the 1970s through the 1990s,
On the other hand, other changes increased pressure on states to act procyclically. Converting cash assistance and child care subsidies into block grants to states meant that federal aid no longer increased with rising need during economic downturns.170 Although the legislation creating the Temporary Assistance for Needy Families (TANF) block grant included contingency and loan funds to provide additional assistance to states during downturns,171 states' incentives to avoid accessing these funds proved overwhelming.
The 2009 economic stimulus legislation represented the most focused attempt to reduce state and local governments' drag on federal macroeconomic policy.174 It offered states supplements to their TANF block grants on the condition that they spend the funds on direct aid to families or public service job creation.175 It increased the federal match on
More subtly, and with little apparent reflection on the consequences for macroeconomic management,
c. Models of federal-state administration
If one viewed federal and state governments as independent, self-serving entities operating at arm's length, the administrative structure of federal-state programs would seem quite remarkable. The federal government gives roughly one-sixth of its budget to states to spend.185 Yet the states carrying the federal government's checkbook are not in any formal sense the federal government's fiduciaries. Indeed, as
The federal government has sought to constrain states' enormous power over its own fisc through three devices. First, it limits its exposure with a fixed ceiling on the amount that states may receive and disburse. General revenue sharing operated on this basis in the 1970s.187 Second, it imposes commandand- control regulations on states to direct the funds to its desired purposes. States' administration of the Disability Determination Services that make initial decisions on eligibility for disability payments under
Most federal-state programs include at least two of these devices. The AFDC program that provided cash welfare to the poorest of the poor from 1935 to 1996 had detailed federal rules and required state matching payments;190 the TANF block grant that replaced it, and most other block grants, have detailed rules and funding caps.191 SNAP operates with detailed federal rules,192 compels states to share in the cost of issuances deviating significantly from those rules,193 and requires states to share administrative costs.194 The stringency of one of these controls often is inversely proportional to the stringency of another.
The combination selected often depends on the effects sought. Fixed caps provide the most reliable restraints on the total federal funds that states expend but offer nothing as to the effectiveness of those expenditures. Matching requirements can guard against careless misexpenditure of funds but not against deliberate efforts to spend federal funds in ways the federal government has not selected. Detailed, well-drafted federal rules can be effective in controlling both the amount and the purpose of federal spending, but they expose their authors to political criticism over their terms-and they are impossible where federal policymakers cannot agree on the program's contours.
The effectiveness of these controls varies from program to program. Too high a state matching requirement for a program that is not a priority for many politicians can fail to motivate state activity: AFDC's Job Opportunity and Basic Skills (JOBS) program195 and the Food Stamp Employment and Training Program196 often returned money to the treasury unspent.197 On the other hand, a low state-matching requirement may cause states to seek loopholes to expand the program beyond the scope conceived at the federal level. Many states expand
Recent years have seen movement away from reliance on detailed federal rules. Although sometimes couched in terms of high principles, this chiefly reflects the breakdown of substantive policy consensus at the federal level and the need to engage states in any political coalition that has a chance of enacting a significant social program. Where federal policymakers can agree on policies, they have not hesitated to dictate to the states.200 Although the
2. The ACA's federalism
The ACA's most dramatic impact is in its rejection of the
The ACA openly and unapologetically relies upon the superior capacity model. Just as the
Chief
NFIB also, however, strengthens the other two models of fiscal federalism. The compensatory model has assumed that the federal government has a moral obligation to protect states from the fiscal burdens it imposes on them. NFIB for the first time makes that obligation legally binding. Although neither Chief
NFIB also acknowledges and accepts
Conversely, if the ACA fails, it will do so in large part because it was perceived as being "too big." Unlike most recent costly federal initiatives, the ACA did not add to the deficit.211 Although the news media has often leftthat point unsaid, and polling indicates many voters are confused on that point,212 the fact that it fully offset its spending suggests that its demise would signify that no consensus exists that securing access to health care is an appropriate project for the federal government. To be sure, the ACA's fiscal provisions give states broader roles in shaping eligibility rules than some preferred,213 and governors have complained about the costs it does require states to bear. Nonetheless, the ACA's public meaning is as an expansion of federal fiscal responsibility for human services. Some of the ACA's critics claimed to favor its goals but challenged the federal government's legitimacy in pursuing them.214 Similarly, although the ACA delegated far more regulatory power to the states than many would have preferred,215 the broad public understanding of the ACA is as a vast expansion of federal regulatory power. And as criticism of its regulatory provisions has gone to their scope rather than to their (generally popular) substance, the ACA's fall would be a constitutional statement about the role and scope of federal economic regulation.
In other aspects of fiscal federalism, the ACA's entrenchment of the superior capacity model gives federal policymakers a useful tool with which to counteract states' procyclical offsetting of federal fiscal policy. In the near term, however, the ACA exacerbates that problem. The ACA's cost-sharing structure has a similar effect to CHIP's but with a much more dramatic impact on states. Relatively prosperous low-income people will receive federal health insurance tax credits at no cost to the states. An intermediate group will be covered by the ACA's
Finally, the ACA turns the prevailing division of administrative responsibilities on its head by fragmenting administration of its low-income subsidies. Because of ideologically based resistance and procrastination prior to the
This arrangement likely will be unstable; if the ACA survives, the federal exchanges may become a permanent part of the administrative landscape. If so, it would mean that for the first time federal officials will be dispensing large amounts of state funds (rather than the other way around). Developing accountability mechanisms for this arrangement could call some basic assumptions about the federal-state relationship into question. Alternatively, it could provide the impetus for fully federalizing the financing of
B. Modernizing the Social Insurance Constitution
In addition to reshaping fiscal federalism, the
This Subpart analyzes the ACA's challenge to the
Subpart B.2 describes the three-tier system the
Subpart B.3 then identifies the substantive and procedural differences between the tiers in this system.
Finally, Subpart B.4 shows how, to achieve their goal of near-universal coverage, the ACA's architects obliterated the lines between types of programs, with formal subsidies extending far up the income scale as well as a range of informal ones. Its administration and eligibility rules are built around aggregate efficiency and reject much of the individualistic focus, both liberal and conservative, built into other means-tested programs. If the ACA survives, the traditional, individualistic, means-tested program that the
1. The disparate lineage of U.S. social insurance
Our constitution of social insurance sprang from two very different parents. It was in part an adaptation of European social insurance, pioneered by
The European-based social insurance system saw both hardship and its remedy in aggregate economic terms. Income shortfalls could be predicted with reasonable confidence in the elderly, the infirm, those that had lost the primary worker on whom they depended, and those unemployed due to friction in the labor market or downturns in the economic cycle. Government could remedy these shortfalls by shifting resources from the high to the low points in economic cycles and by diverting funds from people in more prosperous phases of their lives and those who had had the good fortune to avoid serious injury and illness. Understood in these terms, relatively little individual-level information was required, and hence the administrative bureaucracy could be kept quite lean to hold down transaction costs. Bismarck realized that, by addressing these problems efficiently, government could gain broad allegiance from lower- and middle-income people without diverting itself significantly from its primary goals.223
The community-based aid system, by contrast, saw problems and solutions in individualistic social terms. The system's historical origins, and even more its mindset, were rooted in neighbors helping neighbors within small towns.224 Under this vision, conscientious but clear-thinking neighbors and parishioners would assess the circumstances of an individual or family in need and dispense the proper mixture of aid and moral guidance to address the problem. Viewed from the perspective of the individual in need, the results could be quite harsh: a widow might be pressured into marrying a man she disliked, perhaps one known to be abusive, and when bad harvests or other broad economic forces depressed income throughout a region, little aid would be forthcoming. Yet the individualistic nature of the enterprise-both the provision of aid and the making of moral judgments-was thought to improve the character of all involved and thereby strengthen the fabric of the community.225
Even in small rural communities, direct neighbor-to-neighbor aid often proved unworkable. The advent of industrialization, urbanization, and the intense concentrations of poverty that they brought rendered the neighbor-based aid obviously insufficient even to pretend to meet the scope of the need.226 Nonetheless, that system remained policymakers' professed ideal, and governments setting up poor-relief programs went to great lengths to incorporate what they regarded as the essential features of the idealized model.227 One icon of early public aid programs was the poorhouse. It rested on the assumption that someone would not need public aid without some pathology and hence, by seeking aid, was implicitly admitting an inability to live independently. Conversely, having paupers "inside" made them more susceptible to moral upgrading, whether their problems were drinking, disregarding the community's sexual mores, or presumed idleness.228 Although most members of the community might not actively participate in judging and imposing moral correction on those in the poorhouse, awareness of its stigma provided a strong deterrent against becoming impoverished and hence against alienating community power figures: family patriarchs, employers, landlords, and the like.229
Poorhouses, however, proved both expensive and administratively challenging to operate. During major economic downturns, their capacity was grossly inadequate. Maintaining them was a largely thankless task, and often after an initial frenzy of moralizing reformism, communities' poorhouses fell into disrepair.230 As a result, "outdoor relief"-supporting a family in its own home-became the predominate form of aid in practice, if not in communities' self-image, almost everywhere.231 Yet the formal preference was still indoor relief, and the ultimate ideal remained informal neighbor-to-neighbor aid. Localities thus did all that they could to interject the maximum amount of moral judgment and correction into their programs.232 Assistance was provided a week, or at most a month, at a time by a local official or judge, with the petitioner subject to any form of scrutiny the dispensing authority sought to impose. 233 Communities imposed work programs, not to obtain services of value- the occasional services of largely unskilled people who happened to need aid at a given time typically cost more to organize and supervise than they were worth-but as a morality test.
So whereas the European social insurance system rested on the assumption that certain kinds of deprivation were statistically inevitable in the aggregate, the community-based aid system that prevailed in this country before the
With the fiscal collapse first of local governments and then of states, the Great Depression exposed fundamental flaws in the community-based system and prevented it from continuing to operate as it historically had.234 On the other hand, the nation was far from ready to embrace fully the European concept of social insurance. The result was an elaborate series of compromises involving the financing, coverage, eligibility, and administration of social insurance programs in this country.
2. The three-tier social insurance system
Although
Top-tier programs were the centerpiece of the social insurance constitution as
Political debate about social welfare since the
Gender has played an important role in the assignment of tiers. Groups disproportionately composed of men, typically those who have worked outside of the home, have been more likely to receive first-tier programs.243 Disproportionately female groups, such as those raising children, have more often received second-tier programs.244 Indeed, as groups' gender compositions have changed, programs have taken on characteristics of the other tier. As women's increasing participation in the formal workforce and programmatic reforms made UI, a first-tier contributory social insurance program, more available to women,245
The distinctions among the tiers have remained robust over time. To be sure, some top-tier programs provide benefits under redistributive formulas. Some agencies, including the
Finally, lest anyone believe that gaps in the safety net were the result of oversights or the sluggishness of step-at-a-time elaboration of the safety net, the 1996 welfare law252 reinvigorated the third-tier response, rejecting public responsibility for large new segments of the chronic and acute poor. As a result, as poverty has skyrocketed in the current economic slump, the number of poor families receiving cash assistance has remained largely unchanged-with millions of poor families receiving no cash aid at all.253
3. Program design
This strict separation into tiers has had far broader consequences than the programs' bare architectures. Both their means of determining eligibility for benefits and their administrative apparatuses differ sharply from one another.
a. Eligibility determination
Consistent with their economic theory of the problems they are addressing, first-tier social insurance programs base eligibility on financial formulas. Criticisms of these formulas primarily go to their highly aggregative nature and their failure to take more of claimants' circumstances into account.254
Second-tier programs, by contrast, typically have much more intrusive eligibility criteria and application procedures, with tolerance of these methods being the price beneficiaries must pay to receive aid.255 This can be a deliberate method for controlling caseloads.256 Indeed, many of the most important second- tier programs have explicit caps on the number of participants, commonly set at a tiny fraction of those eligible.257 Rationing this artificially constrained supply of benefits leads to inefficiencies, but it also provides further opportunities to assess claimants' moral character.258
Efforts to shiftsecond-tier programs from a social to an economic vision of poverty have been slow and halting. The establishment of coherent financial eligibility requirements, which most states had done by the 1950s, was a nod toward the economic approach of social insurance. On the other hand, the longstanding view that poverty was a social pathology from which low-income people need to be cured resulted in requirements of intense scrutiny prior to dispensing any aid. Although the
By the early 1970s, the supervisory apparatus of means-tested programs faced criticism from all sides. Claimants' advocates resented its disregard of claimants' privacy and suspected it continued to obscure racial discrimination and other illegitimate judgments.261 Conservatives believed that social workers invariably sympathized with claimants and hence were unreliable stewards of scarce public funds.262 And states resented the cost of hiring enough professionals to supervise their much-increased caseloads.263
Absent any substantive change, the criticism of social work in meanstested programs led to the replacement of professionals with minimally trained "income maintenance" workers.265 These employees, many with only high school educations, were expected to implement detailed, supposedly nondiscretionary policy rather than to exercise subjective judgments about claimants. As programs evolved to reflect a political climate more inclined to moralize against low-income people,266 these undertrained workers were making increasingly complex, subjective judgments.267
The design of financial eligibility criteria in second-tier programs also reflects the programs' ambivalence about the nature of need. A great many factors affect the extent of an impoverished individual's or family's need for aid. Certainly the number of people involved and the amount of available income are two important factors. But many others, including resources and possible aid from relatives and other public programs, have been considered in some programs268-even if ability to access those hypothetical sources of aid is highly dubious. Programs' reliance on these social factors of eligibility has varied considerably over time.
The most significant shifttoward a more economic approach in second-tier programs was the establishment of the Earned Income Tax Credit (EITC) in 1975269 and its subsequent expansions in later years.270 The EITC emulated first-tier programs in sharply restricting the facts relevant to eligibility determinations- chiefly just annual income, the source of that income, and responsibility for supporting minor children-and relied on the
b. Program administration
The dichotomy between the aggregative, efficiency-minded social insurance system and the individualized social supervision of welfare programs extends to program administration. The myth of self-sufficiency of first-tier programs, along with the appeal of the populations they serve, has resulted in considerable political strength, low stigma for beneficiaries, and generally respectful, deferential program administration. The top level of the social insurance system rapidly evolved into the impersonal bureaucratic structure of a financial institution. For decades, the
By contrast, means-tested programs' localized history, and their emphases on interacting with individuals, caused them to have numerous local offices, to assign specific eligibility workers to each family, and to require frequent interviews as a condition of receiving benefits.275 These programs' administrative regulations speak explicitly in social terms, describing "cooperation,"276 "encourage[ ment],"277 the proper method for "talking with" employers and landlords, 278 home visits,279 and assessing fault when the interaction goes awry.280
Since the 1980s, some means-tested programs have modernized their administration in limited ways.
4. The ACA's transformation of social insurance
The ACA has provided an obvious vehicle for subverting this order.285 To be sure, it would leave the poorest families in Medicaid.286 Nonetheless, most of those newly insured would participate through the same exchanges that provide middle- and upper-income people non-means-tested assistance purchasing insurance. Decisions allowing erosion in the standards for health plans for lowincome people purchasing coverage through the exchanges would also affect more politically powerful middle- and upper-income people buying similar plans. And higher-income people in universal programs would experience some significant means testing.287 Although imperfect, this partial merger of the first two tiers of public response to need would be transformative. If the ACA survives, this suggests that the
Perhaps even more transformative is the ACA's general rejection of the third tier-denial of public involvement-as a legitimate response to clear need. Apart from undocumented immigrants, the ACA recognizes all people's need for health care-and on surprisingly equal terms. Proponents also argue that lack of insurance is an economic problem for the nation as a whole, requiring costly administrative overhead to separate out costs and leading to inefficient cost shifting.288 This universality and the harm being uninsured causes people of all ages are central to its supporters' arguments.289 Indeed, defying custom, the ACA gives the federal government primary fiscal responsibility for the least politically attractive group-childless adults-and leave states sharing more substantially in the costs of relatively attractive children, seniors, and people with disabilities.290 The ACA's survival would refocus future social welfare debates on which needs the safety net will address rather than which people it will recognize.
On the other hand, the ACA's demise would be an enormous triumph for the third-tier response-or nonresponse-to human needs. If our nation is willing to abandon legislation providing as important a service as health care to tens of millions of people,291 a denial of social responsibility will remain a politically credible response to human needs. Exceptions, indeed large exceptions, will remain: programs will not dissolve all at once. But hopes will evaporate for expanding the first tier to relieve individual hardship and to reduce the second tier's role. And those seeking to preserve or expand second-tier programs will need to expend considerable political capital arguing that those programs should exist at all.
The ACA also makes fundamental changes in how this country determines need in means-tested programs. In particular, it makes a dramatic movement away from determinations of need on a month-by-month basis and toward annualized calculations. It represents the triumph of the annualized, efficiencyoriented accountancy model of the EITC over the monthly, individualized, social work model of welfare programs. This shifthas costs for low-income people. The EITC and related tax provisions have based eligibility on annual need; although the funds they provide have certainly been useful to low-income beneficiaries, they are ill designed to meet the day-to-day needs of low-income people. Indeed, we may already have too large a proportion of our means-tested benefits provided through programs based on annual need.292 Annualizing need imposes particular difficulties on the large fraction of low-income families whose income fluctuates over the course of a year.293 Particularly after the administration twice agreed to amendments to the ACA in 2011 to sharply increase the severity of the clawback of monthly subsidies exceeding what a family qualifies to receive on an annualized basis, families losing employment midyear may be unable to afford health coverage: although they lack the current funds to pay premiums, their income earlier in the year will disqualify them from receiving sufficient subsidies.294
Finally, the ACA's administrative structure makes a sharp break from the
C. Health Care Reform and Principles of Taxation
Quite apart from its practical importance in funding government, this country long has seen its taxation system as defining our national identity.296 The
Although other
This Subpart explores how the ACA undercuts the simplifying values in taxation that the
1. The
The tax system enacted in the wake of the Sixteenth Amendment focused overwhelmingly on elites: various corporate income taxes and a personal income tax that reached only the richest individuals.301 The Revenue Act of 1932 extracted large sums out of a severely ailing economy, but it did not change the underlying structure. Further revenues were required, however, to expand the federal government's activities and in particular to provide a robust system of social insurance. Wealth was sufficiently concentrated to allow a further deepening of the existing revenue structure, at least in the near term.
The Social Security Act of 1935, however, established the principle of broad, individual participation in a system of taxing income. In so doing, it fundamentally changed the theory of justice underlying the tax system. The payroll tax was promoted and understood as a rite of membership in society, something that (almost) all working people paid to secure a benefit that (almost) all working people could enjoy.
Unlike the income tax systems of the time, it prized simplicity and transparency over all else: no deductions, no complex accounting rules, and no preferences of any kind for wages up to the covered limit. In the aggregate, the payroll tax was regressive: it did not apply to higher amounts of wages or to any unearned income, which is disproportionately received by the affluent.303 Accordingly, sophisticated elite opinion favored a progressive income tax, then and now.304 By contrast, the payroll tax's claim of justice applied on the individual level and appealed to those suspicious of economic analyses: each person could be assured that she was being taxed on the same basis as other workers.305 Moreover, the earmarking of payroll taxes for
The broadening and deepening of the tax system, combined with the
Administrative decisions that superficially resemble tax policy choices but actually serve the same purposes as spending programs result from the "choice of the tax system as the vehicle for providing financial assistance."315 Critics typically assume that tax expenditures are less efficient-more expensive- than spending programs achieving comparable results.316 This inefficiency results from tax expenditures subsidizing activities that would have occurred without incentives and from providing subsidies greater than the value of the underlying activity.317 Critics also see typical tax expenditures as the culprits in high-income taxpayers' ability to avoid substantial tax liability.318
2. Reviving populism: the Tax Reform Act of 1986
A principle preventing politicians from granting special favors through the tax code would put the aggregate and long-term good over immediate political exigencies, a classic role for constitutionalism. The Tax Reform Act of 1986 represented a major effort to invoke popular constitutionalism to reinvigorate the
To be sure, the Tax Reform Act leftintact many massive tax expenditures having dubious relationships with revenue-raising purposes narrowly construed. Vigorous debates ensued over which provisions should be understood as departures from the core purposes of tax.329 Indeed, it even initiated some new provisions seeking to advance broader social goals, such as the EITC.330 The powerful interest groups whose lobbying contributed to the complexity of the code were hardly vanquished.331 Nonetheless, the Act's enactment changed the terms of legitimacy in tax policy discourse. The fact that some, even including its authors, did not immediately conform themselves to the renewed
The norm of tax purity, however, has been under considerable pressure since the Tax Reform Act's enactment.332 The pervasiveness of the tax code has proven tempting to social engineers in each party who seek to carry out new initiatives without bearing the fiscal costs and political risks of establishing new bureaucracies. In addition, presidential candidates building their campaigns around the expansion of this principle through a "flat tax" have fared poorly. In hindsight, the Tax Reform Act's ineffectiveness in entrenching norms of tax purity may have resulted from its failure to establish a strong political precedent of providing alternative, direct subsidies-a politically viable alternative to tax expenditures.333
Still, evidence of the ongoing force of this principle in political discourse is amply available. Most recently, the leadership of the President's bipartisan deficit reduction commission felt that this concept had sufficient sway to allow it to depart from its mission to propose rewriting the tax code along the lines of the 1986 Act.334 Complaints that its proposed rate reductions would lose revenue and hence were inconsistent with its charge failed to gain traction on the commission or in the public debate.
3. The ACA's repudiation of populist tax purity
The ACA builds a large and complex health care subsidy system into the tax code, affecting a substantial segment of the American public. It also builds a considerable amount of its regulation of health insurance transactions in the private sector into the code. Crucially, it enforces its individual mandate to purchase insurance through a tax penalty.335 It makes no attempt to earmark revenues for the new social insurance program it establishes. The ACA also represents a dramatic shiftfrom deductions to refundable credits as a means of delivering tax subsidies.336 Although many if not most deductions exist to favor some politically or economically appealing activity, they at least have the appearance of being part of the process of accurately measuring income. Credits, by contrast, are indisputably tax preferences and hence overt uses of the code for economic regulation.
The ACA's premium subsidies likely escape some of the classic defects of tax expenditures: relatively few of their recipients would have purchased comparable coverage without the subsidies, and they will not be vehicles for higher-income taxpayers to avoid paying their fair share. On the other hand, implementing these subsidies and coordinating them with other parts of the health care subsidy system surely do "consume a significant part of the time and energy of those involved in tax policy decisions."337 These subsidies are likely to increase audit costs and to increase the number of taxpayers with net liability that they may have difficulty paying.338 They also likely will divert a significant share of their benefits to intermediaries-tax return preparation services- rather than the activity they seek to subsidize.339
The ACA also takes to heart Chief
Arguably none of these provisions is qualitatively different from others that have gone before them.343 The ACA's unusual political salience, however, makes them impossible to dismiss as the result of the political system's modest imperfections in implementing the national constitution. This is all the more so since the Court sustained the individual mandate on these grounds alone. Critics have attacked the ACA's reliance on the tax code, and four Justices derided extending taxation to include such penalties. Republican presidential nominee
The ACA's survival would imply rejection of those attacks and the
The ACA's demise, on the other hand, would still leave a tax code at sharp variance with the 1986 Act. The ACA's defeat seems unlikely to be attributable primarily to its intertwinement with the tax code. Should the ACA fail, therefore, it would postpone the resolution of the attempted constitutional moment on the legitimacy of using the tax code for regulatory purposes not recognized as having a close tie to revenue raising.348
If the ACA's failure occurs in part through Republicans' use of their leverage in budget negotiations, through a Republican's election as President in 2016, or through a Republican takeover of
D. Privatization of Public Law
Several early
A few isolated examples of direct industry participation in federal regulation remain-most prominently, banks' role in selecting policymakers at the Federal Reserve-but this has ceased to be a major point of contention.352 This broad abandonment of direct private control over federal regulation has changed the form of the privatization debate but by no means eliminated it.
This Subpart explores how the ACA's entrenchment would transform the public-private line in U.S. law. Subpart D.1 describes the principles separating the public from the private that the
1.
Since the
First, business interests can manipulate public policy to advance their interests without playing any formal role in its promulgation. One of the earliest recognitions of this was
Second, as the government's role expanded to include more provision of benefits and services, privatizers sought to narrow the definition of an inherently governmental function and expand delegations to private entities.357 Several of the most important public benefit programs, including
Third, government agencies have formed increasingly complex, and often obscure, partnerships with businesses in which both partners are advancing both public and private ends.364 The failed proposals to privatize
Finally, private entities can, willingly or otherwise, provide a vehicle for government to convert regulatory power into redistributive power. When establishment or expansion of a public tax-and-transfer system is politically or operationally infeasible, regulators can require private entities to redistribute resources. 367 The private actors directly subject to these regimes are typically able to pass much of the burden on to other consumers,368 creating the rough equivalent of a tax on those consumers to fund transfers to the beneficiaries of the regulation. In practice, to secure the regulated entities' acquiescence, regulators often accompany these regimes with additional opportunities to extract rents from their customers, leaving those entities better offthan they would have been without the regulation. In exchange for their administration of the redistribution of wealth-and for lowering the public salience of that redistribution- these private intermediaries are handsomely rewarded.
Although some critics respond to these challenges in the same technocratic terms that advocates use to justify privatization369-or simply reject those advocates' definition of the public good370-many also seek to defend a traditional conception of what is governmental for its own sake.371 Thus, for example,
Privatization agendas have sometimes sought to expand the private role as an end in itself375 and have sometimes been advanced as a way station on the road to total elimination of a governmental activity.376 Rarely before, however, have dramatic expansions of the scope of governmental intervention in society been accomplished through an equally dramatic reduction in the functions performed directly by the government. If the ACA becomes entrenched, the latter innovation will have constitutional implications just as surely as the former.
2. The ACA's redrawing of the public-private line
Amidst all of the disinformation in public discourse about health care reform, the ACA's privatizing impact has gained fairly broad understanding.377 The ACA shifted the public-private balance toward the private sector in all four of the dimensions described above.
First, the ACA's best-understood intervention on behalf of a private industry is its mandate that individuals and businesses purchase health insurance. To be sure, the tax system has frequently rewarded purchases of assets in the private sector-most obviously homes378-and the Court has recognized the socalled individual mandate to purchase health insurance as merely a tax advantage for those that do so.379 Rarely, however, have tax provisions promoting purchases been designed with the intention that almost all taxpayers make those purchases. Federal and state regulators have mandated discrete, well-defined purchases, such as car insurance and seat belts, but not on this scale. Health care reform could have been the health insurance industry's Waterloo; instead, the ACA is its triumph.
Second, the ACA provides the vast majority of its coverage expansion through private providers. This choice is quite remarkable. The government already has several health care financing systems with far lower administrative costs than private insurance companies. Rather than providing services and imposing fees directly, however, the ACA requires individuals to purchase health insurance from private companies. It will send subsidies for low- and moderateincome consumers directly to those companies.380
Indeed, not only does the ACA assign most of its new beneficiaries to the private sector, it also seeks to facilitate the shifting of a large segment of the low-income population already covered by public programs into private health insurance. The law provides for sweeping waivers of
On the other hand, the ACA also specifically prohibits any departure from prior statutory requirements that most
Third, control over the contents of those health insurance policies will be the result of a complex interaction between specific federal regulations, broader federal standards for actuarial values, and decisions by private actors. Beneficiaries dissatisfied with their coverage will have great difficulty determining the degree to which public and private decisions contributed to their problems.
Finally, the ACA's emphasis on community rating, sharply restricting insurance companies' ability to charge persons likely to need extensive care anything approaching the full cost of that care, is a massive redistribution of wealth from the healthy to the sick. Here again, expanding
Overall, then, the ACA represents a dramatic departure from past understandings of the public-private line. It responds to persistent complaints about abuses by private health insurance companies by entrenching those companies and expanding their business. This suggests that, particularly in the wake of Citizens United v. FEC,387 the public and private sectors are sufficiently intertwined that the former may have to purchase the latter's compliance with new public policies. The federal government will be paying a multibillion-dollar premium to have the ACA administered by private entities. Previously, most arguments for privatization have claimed that it would bring fiscal savings. The ACA implies a strong preference for private-sector administration that may be overcome only for compelling reasons. This presumption led to the privatization of small functions as well as large ones, leaving a public-private line that weaves back and forth between quite similar functions, resulting in a publicprivate combine that the electorate will have great difficulty disentangling.388 This opacity has allowed the ACA to engage in far greater redistribution than media reports of its cost estimate would suggest. And because the government is so tightly entangled with the health insurance industry, the ACA's success will depend heavily on the industry's success. That, in turn, will give the industry leverage to force even more blurring of the public-private line.389
Privatization on this scale certainly has important constitutional implications. The ACA's entrenchment, however, will not rewrite our fundamental understanding of the public-private line as immediately as it will our understandings of federalism, social insurance, and the uses of the tax code. This is because the public debate at the time of the ACA's passage was remarkably confused on the question of privatization.390 Neither side has sought to frame the debate in terms of a broad expansion of private influence in government. Liberals have presumably refrained from doing so because they do not want the ACA to be a precedent for privatization, which they generally oppose. Conservatives, in turn, have sought to obscure the extent of the ACA's reliance on the private sector with persistent rhetoric about a "government takeover."391 This presumably reflects a concern that a broader appreciation of the ACA's privatizing character would make the law look more moderate and undermine momentum to destroy it. Most strikingly, the Court's four dissenting Justices made clear that a less privatized approach-raising taxes and spending the money on health care-would have been constitutionally permissible.392 Thus, paradoxically, the ACA's failure would set back the cause of privatization, to which most of its enemies ordinarily pay homage.
The struggle over the ACA nonetheless sets the stage for a future constitutional decision about privatization. In Ackerman's terms, the ACA has served as a "triggering" event for a broad constitutional discussion of the publicprivate line. That debate seems likely to proceed because both sides in traditional privatization debates badly compromised their prior positions in the struggle over the ACA. The outcome of that debate may well depend on which side concludes first that the ACA's fate is set. If the ACA's pro-privatization opponents concede that it will become entrenched before its anti-privatization supporters believe they can let down their guard, those opponents will be able to cite the ACA in support of other aggressive privatization initiatives that can serve the "proposing" function. If, on the other hand, the ACA's supporters believe it is doomed before its actual collapse, they may begin to blame its privatizing features for whatever implementation problems have alienated the electorate. Conversely, if they become confident in its survival, they may renew in earnest their advocacy for a public option to coordinate coverage or for expanding
Although the debate about privatization has advanced less far than those in other aspects of public law, it could ultimately be even more sweeping. Much of the opposition to the ACA has attacked the notion of government assisting people to obtain health coverage through any means. This raises the question of whether the ACA's opponents' future agenda will be privatizing government functions or eliminating them altogether.393 Critics of privatization long have suggested that the latter was their true goal. Whatever course the erstwhile privatizers decide to pursue, future debates are likely to focus on the defining principles of this country's governance rather than technocratic questions of how most efficiently to operate this or that program. As such, these questions will be far more susceptible to popular constitutionalism.
CONCLUSION
Although we tend to think of legislation as a lower form of enactment, we should remember that this is not always the case. Quia Emptores ended an era, transforming feudalism.394 The Stamp Act brought down an empire.395 The Civil Rights Act of 1964 ensured the fall of a racist regime entrenched for almost a century.
In much the same way, the ACA's survival would sweep away a crucial part of the
The practical consequences would not occur immediately; indeed, some remnants of the prior regime would likely linger indefinitely. Many decades separated the Reconstruction Amendments from Brown v.
The good news is that this will pave the way for constructive solutions to many persistent problems. The
These opportunities to advance reasoned governance, however, come with a cost. As Reich cautioned,
it is not any particular kind of power, but all kinds of power, that are to be feared. . . .
Accordingly, We the People may decide, especially if the ACA's implementation proves rocky, to reject this transformation of the
If the ACA does survive and entrench the post-
1. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code). As part of the agreement that led to the ACA's passage in the House,
2. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132
3. See, e.g., 7 U.S.C. § 2015(o) (2012) (denying food assistance to many unemployed, childless adults below age fifty, thereby reducing expenditures on the supplemental nutrition assistance program).
4. See 2 U.S.C. § 644(b)(1) (2012) (allowing points of order against provisions with negligible or negative fiscal impacts);
5. Food Security Act of 1985, Pub. L. No. 98-198, 99 Stat. 1354 (codified as amended in scattered sections of 7 U.S.C.).
6.
7. See As Health Care Law Proceeds, Opposition and Uncertainty Persist, PEW RESEARCH CTR. (
8. To be sure, a Republican
9.
10. See infra note 74 and accompanying text.
11. See WILLIAM N. ESKRIDGE JR. &
12. See, e.g., Courts & the Constitution: Restoring the Rule of Law, MITT ROMNEY FOR PRESIDENT, http://web.archive.org/web/20120911015053/http://www.mittromney.com/ issues/courts-constitution.
13. See id. ("As president, Mitt will nominate judges in the mold of Chief
14.
15.
16. See U.S. CONST. art. I, § 9, cl. 8 (prohibiting such titles).
17.
18. 2 BRUCE ACKERMAN,WE THE PEOPLE 7-10 (1998).
19. ESKRIDGE & FEREJOHN, supra note 11, at 4-5.
20. Id.
21. 2 ACKERMAN, supra note 18, at 4-5.
22. See ESKRIDGE & FEREJOHN, supra note 11, at 4, 26.
23. See, e.g.,
24. BICKEL, supra note 23, at 235-41 (finding value in the
25. 2 ACKERMAN, supra note 18, at 5.
26. Id. at 15, 71-80.
27. Id. at 8-15.
28. Id. at 81-83; see also ESKRIDGE & FEREJOHN, supra note 11, at 2, 25 (relying on Aristotle's definition of a constitution as a nation's fundamental practices, institutions, and norms).
29. 2 ACKERMAN, supra note 18, at 33-65.
30. Id. at 99-185.
31. Id. at 255-344.
32. THE FEDERALIST NO. 40, at 254-55 (
33. See 2 ACKERMAN, supra note 18, at 4-5.
34. See, e.g., Lindsey v. Normet,
35. See, e.g.,
36. Guarding against subjective, self-serving claims about false constitutional moments, Ackerman derives an extensive five-step process-signaling, proposing, triggering, ratifying, and consolidating-from periods such as Reconstruction and the
37. ESKRIDGE & FEREJOHN, supra note 11, at 12-18.
38. The Constitution may not be amended by ordinary legislation; it requires special signaling. The process of consideration in both chambers, and particularly ratification by the states, ensures an unusually broad discussion. And, with rare exception, ratification takes long enough to present opportunities for political winds to change, as they did on the proposed Equal Rights Amendment for women in the 1970s. See JANE J. MANSBRIDGE, WHY WE LOST THE ERA 29-35 (1986).
39. He distinguishes these constitutional moments, which fundamentally altered the U.S. governing contract, with social movements that failed to win and implement transformative political mandates. See, e.g., ACKERMAN, supra note 18, at 389-403 (describing the lack of clear electoral mandates for, or consistent institutional recognition of, the "Reagan Revolution").
40. U.S. CONST. amend. XVII.
41. Id. amend. XXII.
42. Id. amend. XX.
43. Id. amend. XXV.
44. With the notable exception of the Fourteenth Amendment, every amendment-and certainly every amendment since the Bill of Rights-has been drafted as if bound by the kind of "single subject rule" common in state constitutions. See, e.g., Harbor v. Deukmejian, 742 P.2d 1290, 1298-1304 (Cal. 1987) (applying such a rule to strike down multipurpose legislation).
45. See U.S. CONST. amend. XII (providing for the election of the President and Vice President as a slate); id. amend. XXV (allowing the President to nominate a replacement, presumably of the President's party, when the vice presidency becomes vacant).
46.
47. ESKRIDGE & FEREJOHN, supra note 11, at 1.
48. The concept of an integrated contract, if not the modern terminology, was certainly understood at the time the original written Constitution and Bill of Rights were drafted.
49. See U.S. CONST. amend. IX; id. amend. X. That contracts often did not state the full extent of the parties' agreement also was well known at the time of the Framing. See, e.g., Preston v. Merceau, (1779) 96 Eng. Rep. 736 (K.B.) 736; 2 Black. W. 1249, 1250 ("We can neither alter . . . the two things expressed in this agreement. With respect to collateral matters it might be otherwise. He might shew who is to put the house in repair, or the like, concerning which nothing is said . . . ." (citation omitted)).
50. ESKRIDGE & FEREJOHN, supra note 11, at 1.
51. See JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 63-66 (2011) (discussing the role of popular movements in pushing the Court to retreat from unacceptable constitutional positions).
52. Most substantive canons of interpretation, such as the rule of lenity and the presumption against construing statutes as derogating Native American tribal sovereignty, reflect some sort of constitutional penumbra. See, e.g.,
53. See, e.g.,
54. 5 U.S. (1 Cranch) 137 (1803).
55. See generally
56. Ackerman, supra note 17, at 1762.
57.
58. See ESKRIDGE &FEREJOHN, supra note 11.
59. See infra note 74 and accompanying text.
60.
61. One group called the ACA "every bit as 'intolerable' as the infamous intolerable acts of
62. See, e.g., Tea Party Rally to
63. See 1 BRUCE ACKERMAN,WE THE PEOPLE: FOUNDATIONS 47-50 (1991).
64.
65. Cf. 1 ACKERMAN, supra note 63, at 272-75 (describing depth and breadth of debate as crucial to achieving the signaling function).
66. Cf. id. at 275-78 (describing decisiveness as an important component of popular participation in constitutional moments although acknowledging that that may not be present at the early stages).
67. Id. at 280-85.
68.
69. See infra note 74 and accompanying text.
70. Connolly, supra note 4, at 16-17.
71. Id. at 23.
72. See Press Release, Nat'l Org. for Women, Health Care Reform Victory Comes with Tragic Setback for Women's Rights (
73. See 2 ACKERMAN, supra note 18, at 24-25 (describing the triggering function).
74.
75. See 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 30-31, 78-79 (2014) (describing the failure of the first Reconstruction when all three branches of the federal government abandoned the newly enacted constitutional amendments).
76. See 2 ACKERMAN, supra note 18, at 25 (discussing the ratifying function).
77. See, e.g.,
78. See The Patient Protection and Affordable Care Act on Statewide Ballots, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/research/elections-and-campaigns/affordablecare- act-on-the-ballot.aspx (last updated
79. See 2 ACKERMAN, supra note 18, at 25 (discussing the consolidation function).
80. See ESKRIDGE & FEREJOHN, supra note 11, at 193-98 (describing the broad popular support enjoyed by
81.
82. See Americanbridge21st,
83. See, e.g., Lochner v. New
84. See, e.g., Plessy v. Ferguson,
85. See 3 ACKERMAN, supra note 75, at 323 (describing the important role the Justices played in implementing desegregation).
86.
87. 132
88. Id. at 2643 (joint dissent).
89.
90.
91.
92. See JANUARY ANGELES, CTR. ON BUDGET & POL'Y PRIORITIES, HOW HEALTH REFORM'S MEDICAID EXPANSION WILL IMPACT STATE BUDGETS (2012), available at http://www.cbpp.org/files/7-12-12health.pdf (noting that the federal government will bear nearly all costs).
93. See 2 U.S.C. § 644(b)(1)(A)-(B), (E) (2012) (prohibiting inclusion in reconciliation bills of any provisions with no fiscal effects or with fiscal effects that are merely incidental to their nonbudgetary purposes).
94. To be sure,
95. See 3 ACKERMAN, supra note 75, at 76-78 (finding that the need to reach consensus across parties has supplanted the need to reach consensus across regions in our nation's fundamental lawmaking).
96. Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, § 101, 117 Stat. 2066, 2071-2152 (codified as amended in scattered sections of 42 U.S.C.).
97. See, e.g.,
98. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-07-824T,MEDICARE PART D: ENROLLING NEW DUAL-ELIGIBLE BENEFICIARIES IN PRESCRIPTION DRUG PLANS 9-10 (2007) (finding that the
99. Repealing a major
100.
101. This, along with funding for the
102. Accordingly, the ACA did not provide funding for HHS to operate thirty-six state exchanges.
103.
104.
105.
106. See id. at 1291, 1315-16.
107. See id. at 1292.
108. Id. at 1380-86. The food stamp program survived only by bringing back onto its rolls millions of low-wage working families, essentially reversing
109. Cf. ESKRIDGE & FEREJOHN, supra note 11, at 186-98 (describing the means by which
110.
111. Marco Rubio Says Medicaid Expansion Money "Will Go Away," POLITIFACT.COM (
112. See, e.g., I.R.C. § 5000A (2012).
113. See 42 U.S.C. § 18041(c) (2011).
114.
115. See, e.g.,
116.
117. See Politics Wasn't Only Reason Why Some GOP-Led States Didn't Set Up Own Exchanges,
118. Status of State Action on the Medicaid Expansion Decision, 2014, KAISER FAMILY FOUND., http://kff.org/health-reform/state-indicator/state-activity-around-expandingmedicaid- under-the-affordable-care-act (last visited
119. Id.
120. Id.
121. Ackerman, supra note 17, at 1774.
122.
123.
124. See RICHARD H.
125. Cf. ESKRIDGE & FEREJOHN, supra note 11, at 186 (noting the conversions of Republican former opponents of
126. See id. at 186-87 (describing how
127. Cf. id. at 192 (describing how a bipartisan commission originally proposed by one of
128. Cf. id. at 198 (describing the national elections most important to
129.
130. Cf.
131.
132. Super, supra note 130, at 2575-76.
133. Id.
134. Id. at 2576.
135. ESKRIDGE & FEREJOHN, supra note 11, at 172-73.
136. Id.
137.
138.
139. See 5 U.S.C. § 553(a)-(b) (2012) (excluding government grants and benefits, as well as many other public functions, from the APA's rulemaking procedures).
140. See, e.g., id. §§ 553(c), 554(a) (deferring to authorizing statutes as to whether formal procedures govern rulemaking and adjudication).
141. See Housing Act of 1949, ch. 338, 63 Stat. 413 (codified as amended at 42 U.S.C. §§ 1441-1469 (2011)).
142. See, e.g., King v.
143. See ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF 427 (
144.
145. See STEPHEN BREYER, REGULATION AND ITS REFORM 237-38, 323-40 (1982).
146.
147. Id. at 778.
148. See, e.g., Age Discrimination in Employment Act of 1967 § 11(b), 29 U.S.C. § 630(b) (2012); Worker Adjustment and Retraining Notification Act § 2(a)(1), 29 U.S.C. § 2101(a)(1); Civil Rights Act of 1964 § 701(b), 42 U.S.C. § 2000e(b) (2011); Americans with Disabilities Act of 1990 § 101(5)(A), 42 U.S.C. § 12111(5)(A).
149. 42 U.S.C. § 654.
150. Id. § 627.
151.
152. See ESKRIDGE & FEREJOHN, supra note 11, at 172;
153. MICHAEL B. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN AMERICA 214-15 (1986).
154. TRATTNER, supra note 152, at 287.
155. Id. at 282.
156. See KATZ, supra note 153, at 215.
157.
158. See, e.g., id. (describing the compensatory, leadership, and superior capacity models).
159. Id. at 2577-79.
160. Id. at 2571-74.
161. See, e.g., id. at 2584-85; see also U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-04- 72, OVERVIEW OF FEDERAL ASSISTANCE TO THE
162.
163.
164.
165.
166. See id. at 2612-13.
167. See 42 U.S.C. § 1382g(a)(3)-(4) (2011).
168. See 7 U.S.C. §§ 2011-2036 (2012).
169. See
170. See, e.g., 42 U.S.C. §§ 601-619 (providing for Temporary Assistance for Needy Families block grants).
171. See id.; see also
172. See, e.g.,
173. 7 U.S.C. § 2015(o)(2)-(3).
174. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (codified as amended in scattered sections of the U.S. Code).
175. Id., sec. 2101, § 403, 123 Stat. at 446-49.
176.
177. See DOROTHY ROSENBAUM, CTR. ON BUDGET & POLICY PRIORITIES, SNAP IS EFFECTIVE AND EFFICIENT 6 & n.9 (2013), available at http://www.cbpp.org/files/7-23- 10fa.pdf.
178.
179. See, e.g.,
180. 42 U.S.C. § 1397ee(a)(1) (2011).
181. Indeed, states already had the ability to raise their effective income eligibility limits as high as they wished at existing matching rates by disregarding arbitrary amounts of income. See 42 U.S.C. § 1396a(r)(2). Their failure to do so indicated that they had gone as far as they were willing at current matching rates.
182.
183.
184. See KAISER COMM'N ON MEDICAID & THE UNINSURED, A DECADE OF SCHIP EXPERIENCE AND ISSUES FOR REAUTHORIZATION 3-4 (2007), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/7574-2.pdf.
185. CONG. BUDGET OFFICE, FEDERAL GRANTS TO STATE AND LOCAL GOVERNMENTS: OUTLAYS IN 2011 FOR FEDERAL GRANTS TO STATE AND LOCAL GOVERNMENTS 3 (2013).
186.
187.
188. See 42 U.S.C. § 421 (2011).
189.
190. 42 U.S.C. §§ 602, 612 (1994) (repealed 1996).
191. 42 U.S.C. §§ 605-609 (2011). TANF also has a maintenance-of-effort funding requirement (MOE) for states, but, because it does not require that MOE funds be spent on the same activities as federal funds, it cannot be seen as a check on the integrity of state administration. Id. § 609(a)(7).
192. 7 C.F.R. pts. 271-285, 295 (2013).
193. 7 U.S.C. § 2025(c) (2012).
194. Id. § 2025(a), (h).
195. 42 U.S.C. §§ 681-687 (1994) (repealed 1996).
196. 7 U.S.C. §§ 2015(d)(4), 2025(h) (2012).
197. STAFF OF H. COMM. ON WAYS & MEANS, 104TH CONG., 1996 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON PROGRAMS WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS 413-19 (Comm. Print 1996); CHRISTOPHER BOTSKO ET AL., STATE USE OF FUNDS TO INCREASE WORK SLOTS FOR FOOD STAMP RECIPIENTS: REPORT TO CONGRESS 23-31 (2001).
198. 42 U.S.C. § 1396a(r)(2) (2011).
199.
200. For example, with both parties seeking to be seen as requiring cash assistance recipients to work, the otherwise thinly drawn TANF regulations are spectacularly prescriptive about which kinds of work activities count. 45 C.F.R. §§ 261.30-.36 (2013).
201. See The Accuracy of CBO's Budget Projections, CONG. BUDGET OFFICE (
202.
203. It also significantly expands federal regulation of health plans previously subject to state insurance offices. See, e.g., 42 U.S.C. § 18012 (limiting states' standard-setting authority over such plans). This is important public policy but does not meaningfully extend the
204.
205.
206.
207. Cf. id. at 163-68.
208. See, e.g., 42 U.S.C. § 18051(d) (allowing states to receive ninety-five percent of the federal funds otherwise coming to them for alternative health care systems).
209. Status of State Action on the Medicaid Expansion Decision, 2014, supra note 118.
210. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132
211.
212. See, e.g., Kaiser Health Tracking Poll, Feb, 2012, ROPER CENTER, http://www.ropercenter.uconn.edu/cfide/psearch_test/webroot/multquestion_view.cfm?QST N_ID2=1806927&qid=+1806927&pid=4&ccid=4&x=75&y=12 (last visited
213. See, e.g., 42 U.S.C. §§ 18051-18052 (allowing states to design alternatives to insurance exchanges and premium subsidies);
214. See, e.g.,
215. See Editorial, The Next Step on Health Reform,
216. See supra note 111 and accompanying text.
217. See KAISER COMM'N ON MEDICAID & THE UNINSURED, MEDICAID FINANCING: AN OVERVIEW OF THE FEDERAL MEDICAID MATCHING RATE (FMAP) 1 (2012), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8352.pdf.
218. See Establishing Health Insurance Marketplaces: An Overview of State Efforts, KAISER FAMILY FOUND. (
219. See, e.g., State Action to Establish Health Insurance Marketplaces:
220. ESKRIDGE & FEREJOHN, supra note 11, at 173, 181. This effort succeeded initially when the Social Security Act passed
221. THE FEDERALIST NO. 8, at 67-68 (
222. See TRATTNER, supra note 152, at 230 n.7.
223. See JAMES T.
224. See generally TRATTNER, supra note 152, at 32-46.
225. See KATZ, supra note 153, at 58-66.
226. See id. at 146-50.
227. See id. at 36-57.
228. Id. at 23-24.
229. See FRANCES FOX PIVEN &
230. See KATZ, supra note 153, at 85.
231. See id. at 54-55.
232. See id. at 58-60.
233.
234. See KATZ, supra note 153, at 226.
235. See ESKRIDGE & FEREJOHN, supra note 11, at 182.
236. A third option, present in some of the European systems that provided models for the
237. Critics of the Social Security Act feared "a system of regimentation and bureaucratic domination." ESKRIDGE & FEREJOHN, supra note 11, at 181-82 (internal quotation mark omitted); see
238. ESKRIDGE & FEREJOHN, supra note 10, at 182-83.
239. See CONG. BUDGET OFFICE, THE BUDGET AND ECONOMIC OUTLOOK: FISCAL YEARS 2013 TO 2023, at 16 tbl.1-3 (2013) (showing that spending on
240. See KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF
241. See KATZ, supra note 153, at 268-69. For example, some have argued that expanding universal programs, as much of
242. See Where Are States Today?
243. Cf.
244. See id. (describing programs available to women, and in particular, mothers).
245. See, e.g.,
246. See, e.g., 42 U.S.C. § 1396a(a)(10)(A)(ii)(V) (2011).
247. See DOROTHY K.
248. See, e.g.,
249.
250. See LAWRENCE M. MEAD, THE NEW POLITICS OF POVERTY: THE NONWORKING POOR IN AMERICA 28-33 (1992).
251. Although eligibility for long-term care assistance is nominally subject to the
252. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of the U.S. Code).
253. See DANILO TRISI &
254. See, e.g., Weinberger v. Salfi,
255. One former senior HHS official sadly described its two large health care programs to the author as "Med-I-Care and Med-I-Don't-Care."
256.
257. See, e.g., Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984) (scrutinizing procedures for allocating scarce slots in the
258.
259. Edwards v.
260.
261.
262. See id. at 1138.
263. See id.
264. See PETER EDELMAN, SEARCHING FOR AMERICA'S HEART: RFK AND THE RENEWAL OF HOPE 108-12 (2001).
265. Diller, supra note 261, at 1161 & n.203.
266.
267.
268. See, e.g., Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979) (analyzing the requirement that applicants for general assistance first exhaust other possible public benefit programs).
269. Act of
270. See, e.g., Tax Reform Act of 1986, Pub. L. No. 99-514, § 111, 100 Stat. 2085, 2107-08 (amending I.R.C. § 32).
271. See CONG. BUDGET OFFICE, supra note 239, at 16 tbl.1-3 (projecting EITC spending to exceed any other income-security program once recession-induced bulges in SNAP and UI benefits subside).
272.
273.
274. See PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 374-75 (1982).
275. See, e.g., 7 U.S.C. § 2020(e)(2) (1994) (amended 1996) (requiring in-person interviews each time a household's application to receive food stamps is approved or renewed); 7 C.F.R. § 273.2(e)(1) (2013) (requiring interviews prior to approval to receive SNAP benefits and at least annually thereafter).
276. 7 C.F.R. § 273.2(d).
277. Id. § 273.2(c)(2)(i).
278. Id. § 273.2(f)(4)(ii).
279. Id. § 273.2(f)(4)(iii).
280. Id. § 273.2(h)(1).
281. See DONNA COHEN ROSS &
282. See id. at 15.
283.
284.
285. See ESKRIDGE & FEREJOHN, supra note 11, at 197 (describing how national health insurance came close to being included in the original Social Security Act or its early amendments).
286. MacGillis et al., supra note 68, at 108.
287. Id. at 119-20. A modest degree of means testing entered
288.
289.
290.
291.
292.
293.
294. See JUDITH SOLOMON &
295.
296. See, e.g.,
297. Pollock v.
298. U.S. CONST. amend. XVI.
299. See JAMES M. BUCHANAN &
300. Cf. ESKRIDGE & FEREJOHN, supra note 11, at 191 (describing
301.
302. See ESKRIDGE & FEREJOHN, supra note 11, at 176-77.
303. Affluent recipients of capital income have proven adept at evading even taxes designed to reach them.
304.
305. Some suggest that the complexity created by tax expenditures increases noncompliance by the affluent, raising equity concerns. When behavioral effects are considered, however, the overall effect is less clear.
306.
307. See STANLEY S. SURREY &
308. See id. at 97-98.
309.
310. SURREY &MCDANIEL, supra note 307, at 31.
311. E.g.,
312. See BIRNBAUM &MURRAY, supra note 296, at 13.
313. Id. at 47.
314. SURREY &MCDANIEL, supra note 307, at 106-07.
315. Id. at 69-70.
316. See id. at 70, 82.
317. Id. at 82-83.
318. See id. at 71.
319. Another bipartisan agreement earlier in
320. See 1 U.S. TREASURY DEP'T, TAX REFORM FOR FAIRNESS, SIMPLICITY, AND ECONOMIC GROWTH, at ii (1984), available at http://www.treasury.gov/resource-center/taxpolicy/ Documents/tres84v1All.pdf.
321. BIRNBAUM &MURRAY, supra note 296, at 15-16, 99.
322. Id. at 29, 51, 174.
323. Id. at 39-41, 73, 94-100.
324. Id. at 53-64, 75.
325. Id. at 108-10.
326. Id. at 174-75.
327. Id. at 235, 239.
328. Id. at 277, 281.
329. See, e.g.,
330. See BIRNBAUM & MURRAY, supra note 296, at 55 (describing political imperatives to reduce tax burdens on the lowest-income households). But see Alstott, supra note 292, at 564-66 (questioning the tax code's efficacy as a vehicle for poverty relief).
331.
332. See, e.g., Daniel S. Goldberg, Tax Subsidies: One-Time vs. Periodic: An Economic Analysis of the Tax Policy Alternatives, 49 TAX L. REV. 305, 305-07 (1994) (finding evidence that the Tax Reform Act's simplification was rapidly being reversed);
333. See SURREY &MCDANIEL, supra note 307, at 89.
334. NAT'L COMM'N ON FISCAL RESPONSIBILITY & REFORM, THE MOMENT OF TRUTH 15, 28-34 (2010), available at http://www.fiscalcommission.gov/sites/fiscalcommission.gov/ files/documents/TheMomentofTruth12_1_2010.pdf. Although endorsed by co-chairs
335. I.R.C. § 5000A(c) (2012).
336.
337. SURREY &MCDANIEL, supra note 307, at 71.
338. See id. at 94-97 (finding the
339. See id. at 83-84 (criticizing tax expenditures on this basis). The incidence of the ACA's subsidies likely is complex, with a great deal likely going to large health care companies, relatively affluent doctors, and insurance companies. A direct subsidy program such as
340. McCulloch v.
341. I.R.C. § 4980I (2012).
342. Id. § 5000B.
343.
344.
345.
346.
347.
348. This delay may be a relatively short one as Republicans have again made the reduction in tax rates a major part of their agenda, which they assert should be offset with reductions in tax preferences.
349.
350.
351. 2 ACKERMAN, supra note 18, at 297 (describing
352.
353. Other frontiers may open in coming years but are insufficiently developed today to figure directly in a constitutional moment. See generally
354. See, e.g.,
355.
356. See, e.g.,
357.
358. See TRATTNER, supra note 152, at 326 (describing how the Agriculture Act of 1949 was replaced by the Food Stamp Act of 1964, which was the precursor to the modern SNAP program).
359. See KATZ, supra note 319, at 129-33.
360. Michael
361. See, e.g., Super, supra note 273, at 395-96.
362. See supra note 96 and accompanying text.
363. See, e.g., 42 U.S.C. § 1395w-111 (2011).
364. See, e.g.,
365. See HENRY J. AARON &
366.
367. See generally
368. See, e.g.,
369.
370.
371.
372. GALBRAITH, supra note 355, at 331 (internal quotation mark omitted).
373. Reich, supra note 146, at 770.
374.
375. See CHARLES NOBLE, WELFARE AS WE KNEW IT: A POLITICAL HISTORY OF THE AMERICAN WELFARE STATE 140-41 (1997).
376.
377.
378.
379. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132
380. MacGillis et al., supra note 68, at 81.
381. 42 U.S.C. § 1396n(h) (2011).
382. See, e.g.,
383. 42 U.S.C. § 18083(d)(2)(B); see id. § 1396a(a)(4)(A) (requiring merit systems employees to determine eligibility for
384. See Health Care Reform, AFSCME (2009), http://www.afscme.org/members/ conventions/resolutions-and-amendments/ieb-resolutions/health-care-reform (threatening to oppose the
385. Cf.
386. See, e.g.,
387.
388.
389. But cf.
390. See 3 ACKERMAN, supra note 75, at 106-11, 287 (arguing that tactical choices made in assembling a majority for a particular decision should not be accorded constitutional weight).
391.
392. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132
393. Privatization also often represents efforts by one executive to bind successors, and the legislature, to particular policy choices.
394. See J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 208-09 (2d ed. 1979).
395.
396.
397.
398. Reich, supra note 146, at 774.
399. See, e.g.,
* Professor,
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