Cross-posted from Balkinization

I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory--their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn's paradigm example of the Civil Rights Act (which beautifully fits the theory) fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)

But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.

The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in  Administration.  It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that  we just saw; but also four years' worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges  to discrete aspects of the law (e.g., Hobby Lobby).

But what is most interesting to me about the ACA’s recent story for purposes of superstatute theory is the normative transformation that the statute seems to have wrought. That will be Obama’s biggest legacy on health care, regardless of what happens to the ACA itself; whether it gets amended, partially amended, repealed, or just tweaked and given a different name. That stuff is politics. I’m talking about our fundamental and “gut” understanding of what a health care system should be and what the government's role in it should look like.

As I have detailed before and further detail in the article, our society has never been willing to directly confront the question of what exactly a health care system is supposed to be. Our regulatory structure of health care reflects a purposeful  ambivalence between the norms of solidarity and individual responsibility (should we all be assured some basic level of health care or do we only deserve the health care we each can earn?). We can explain a lot of the fragmentation and regulatory design we currently have in health care by our collective desire to straddle and avoid resolving that tension.

What the ACA did was more forcefully push the needle toward solidarity than ever before.  During the election, it was Trump himself who said that “we are going to cover everyone,” that no one’s health care would be taken away.  We saw a remarkable number of Republicans in the House and Senate over the past seven months defending Medicaid and blanching at the idea of throwing people off the rolls.   Even more shocking, the threat of killing the ACA entirely led more Democrats to talk publicly than ever before about single payer health reform--Medicare for all, what was viewed just 8 months ago as political impossibility, pie in the sky, when Sanders and only a few other idealistic souls were touting it. The ACA changed the political discourse, the political imagination and also the political possibilities. In Jack Balkin’s terms, it seems to have  moved some ideas from “off the wall” to “on the wall,” or at least put them on that path.

The ACA also transformed our legal understandings of the healthcare system. The most important transformation was ACA's facilitation of the federal government’s direct and heavy-handed involvement in the insurance industry.  As I detail in a different new piece with Nichole Huberfeld, the federal government’s intervention in health care is certainly not new.  But the ACA brought the federal government into the insurance system like never before--a private industry previously regulated most directly by the states--and it effectively forced the industry to change the basic way it does business.  None of the repeal bills, notably, would have changed that.  That’s a strikingly widespread acceptance of a new regulatory model.

There is a difference between the political difficulty of taking away social welfare benefits once they are awarded and the entrenchment of new norms that are likely to endure. The ACA was certainly structured--by rolling out its most popular benefits early--with an eye toward the former, and some might argue that the recent debates over Medicaid simply show that benefits once given are hard to take away. But the conversation and the durability of the statute over the past seven crazy months seem to illustrate that we are also in the realm of the second: transformative norm entrenchment that goes beyond the four corners of the statute itself. That's a pretty big deal.

More to come when the article is posted on SSRN.

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