Volume 108

Affordable Care Act Entrenchment

by Abbe R. Gluck & Thomas Scott-Railton

The Affordable Care Act (ACA) is the most challenged—and the most resilient—statute in modern American history. Through and despite hundreds of court challenges, scores of congressional repeal efforts, unexpected state resistance, gutting by the Supreme Court, unprecedented administrative strangulation, and criticism from the beginning that the statute did not go far enough to embrace the principle of universal healthcare, the ACA has changed the way many Americans and the political arena think about healthcare and the entitlement to it.

Over its ten-year lifespan, the ACA went from being the rallying cry of the GOP in 2010, to the center of the Democratic platform in 2018, catapulting universal healthcare to the top of the 2020 Democratic presidential primary agenda. It began as a statute criticized for its practical compromises and its incrementalism—including leaving most insurance in the private market and retaining state control over large swaths of health policy—but those very compromises have, surprisingly, proved key to the ACA’s resilience. They have also been instrumental in the ACA’s entrenchment of not only its own reforms but also a broader, emerging principle of a universal right to healthcare. The idea of health-care for all Americans administered through the federal government was long viewed as political suicide, including as recently as the 2016 presidential election. In an astonishingly fast turnaround, that idea has now been considered and debated by every Democratic presidential hopeful.

The ACA’s principles have been codified outside of federal law and into state law, voted on in ballot initiatives, and advocated for on late-night TV. The Supreme Court has treated the ACA differently from other laws. Core features of the ACA––a law that Republicans have sought to repeal scores of times––are now mainstream positions in the Republican Party.

This Article offers a comprehensive account of the ACA’s structure, the challenges it survived, and how a law that itself evinces a philosophical ambivalence about the right to government-provided healthcare has nevertheless made that right politically and practically possible for the first time in American history. We examine not only court cases and the political tides but also the statute’s governance, implementation, and financing structures to tell a story of entrenchment through multiple modalities—architectural, legal, democratic, political, financial, and expressive—and normative transformation. Legislation scholars will see in this story themes that echo theoretical concepts of special statutes—statutes whose norms transform the legal landscape beyond the statute itself and change the way we think about fundamental rights. Despite our doubts about the practical payoff of those theories, the concept is a helpful jumping-off point for a more detailed exploration of how the particulars of statutory design can facilitate entrenchment and of the various forms entrenchment can take.

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