The Affordable Care Act (the “ACA”) has had a somewhat tortured existence since its enactment in 2010. In The Ghosts of the Affordable Care Act, Professor Gabriel Scheffler tells the compelling story of the various ways in which this massive piece of social legislation has been scaled back or repealed by either Congress or the courts, and begins to offer an explanation of why the legislation was vulnerable to such attacks. More specifically, the article takes on the conventional wisdom that social programs, once enacted, are incredibly difficult to dismantle—a phenomenon commonly referred to as entrenchment. In place of this traditional story, the article makes the case for “enactment-entrenchment tradeoffs.” Professor Scheffler argues that, at least in the case of the ACA, lawmakers were forced to make the law more vulnerable to future amendment or repeal in order to ensure its passage. The article not only produces a compelling historical account of the ACA’s travails, but also offers important lessons for anyone interested in social policy change through the federal legislative process.
The article begins by cataloging the various post-enactment repeals and retrenchments of the ACA’s original terms. Some of these are well known, such as the Supreme Court decision in NFIB v. Sebelius, which made the Medicaid expansion optional for states. But others have received much less attention outside of health policy circles—such as the repeal of the Cadillac Tax and the Independent Payment Advisory Board. Some lived such a short and inconsequential life that even health policy scholars are likely to have forgotten they were ever included in the first place (I am looking at you, CLASS Act). Seeing these changes catalogued in a single place presents a compelling picture of just how much the ACA has changed between 2010 and the present day.
Professor Scheffler then turns to the primary contribution of the article—exploring why it is that the ACA was so vulnerable to post-enactment attacks. In seeking to answer this question, the article synthesizes the social science and public policy literature along with the author’s original contributions. The primary argument advanced in The Ghosts of the ACA is that it was political compromises that were necessary to ensure enactment of the ACA that directly led to its post-enactment vulnerability.
It is difficult to do justice to the depth of the analysis in The Ghosts of the ACA in this short review, but in my view, one of the most intriguing parts of the article is its consideration of the various ways our political and legal climate have changed, rendering entrenchment of social legislation is no longer automatic. Some of the factors identified are unique to health care reform, such as the fact that most Americans already have health insurance coverage and like that coverage, thereby making truly innovative and disruptive health care reform difficult to achieve. Others are unique to the time—such as hostility toward the country’s first Black president. But others have broader applicability. Among these are fiscal constraints and budgeting rules that make it difficult to pass legislation with significant costs, and asymmetric political polarization of both Congress and the judiciary, which make it nearly impossible to pass reforms with bipartisan support, therefore increasing the likelihood of legislative and judicial retrenchment. The growing power of interest groups and the rise of the so-called “submerged state” (in this case referring to the provision of social benefits through the tax code or through private organizations), are also identified as important contributors to post-enactment vulnerability of the ACA.
Each of these factors, Scheffler argues, contributed to the ACA being “under-entrenched” when enacted. While there are many aspects of the ACA that contributed to its under-entrenchment, there are two that receive significant attention—the Act’s complexity and its delayed effective date for key reforms. Together, these factors made the reforms difficult for the average voter to understand, and prevented many benefits from being felt until four or more years after enactment, with the result that legislators likely felt little political pressure to protect the Act’s reforms.
The article concludes by reexamining the conventional wisdom that social legislation becomes quickly entrenched, using the ACA as a case study of sorts, and by highlighting other recent examples of social legislation either enacted on a temporary basis or otherwise repealed. For those interested in enduring social legislation, the article acknowledges that the very things that make legislation harder to retrench also make it harder to enact in the first place. The article, however, does offer some suggestions for reforms that might affect this enactment-entrenchment trade-off. Examples include changing CBO scoring rules and reducing vetogates in the federal legislative process.
But the strength of Professor Scheffler’s contribution in this article lies not in producing a neat and tidy solution to the possible unwinding of social programs, but rather in drawing attention to the fact that various contemporary legal and political factors make retrenchment of such programs a realistic outcome, particularly in the first few years following enactment. It provides a very stark reminder that today’s polarized and fractious political and legal landscape has a real impact on what Congress can accomplish.
