Very Superstatute

Are you superstitious?  I am a little bit.   I don’t believe in a lot of the common superstitions that are out there, but I do get superstitious about the “jinx.”   You know – that thing where you say something out loud, for example, Superhero image“wow, the Mets are actually healthy for once this season,” and then it brings bad luck to the exact thing you spoke about, so that within a week of your comment half the Mets starting lineup ends up on the disabled list.  And it feels like you conjured it up just by talking about it.

So for that reason – and also because I don’t believe they will give up on it anytime soon – I’m loathe to ever say that Republican efforts to repeal Obamacare have failed.  But now that the 2017 fiscal year has ended, and the deadline for this particular round of reconciliation has expired, we can at least say that their first attempt at repealing Obamacare has ended with the law still alive (though it is quite bruised & bloodied – please see the very important note below).*

So now that we at least have the first round of repeal attempts under our belt, I wanted to share a really interesting idea I came across a couple months ago (thanks to @onceuponA) about the status of Obamacare – or to be more accurate, the Affordable Care Act (ACA) as it’s more properly known.  Abbe Gluck, a professor of health law & policy at Yale Law School, has written a number of articles (both scholarly and popular articles) about the ACA over the past few years.  But the particular article that caught my eye was one from this past July in which Prof. Gluck talked about the idea of “Obamacare as Superstatute.”

The idea of a superstatute did not originate with Gluck, as she notes in the article. It’s an idea she picked up from two other professors – William Eskridge, Jr. and John Ferejohn.  Eskridge and Ferejohn first used the term in 2001 to argue that certain statutes come to have significance beyond that of an ordinary law. In their 2001 paper [PDF], the professors begin with an introduction that briefly explains the difference between a superstatute and an ordinary statute.

Most statutes, the professors say, aren’t written with grand ambitions.  They are either just appropriations laws, which apportion funds, or they may be substantive laws but then they tend to only deal with narrow issues or offer short term solutions to larger issues.  And even when laws are written with larger ambitions in sight, the authors argue that they usually don’t have a transformative effect on our culture.  The ones that do – those are the superstatutes.  The authors go on to delineate some of the specific qualities that define a superstatute for them:

A super-statute is a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute. Super-statutes are typically enacted only after lengthy normative debate about a vexing social or economic problem, but a lengthy struggle does not assure a law super-statute status. The law must also prove robust as a solution, a standard, or a norm over time, such that its earlier critics are discredited and its policy and principles become axiomatic for the public culture.

That last line holds so much weight, and of course, whether the ACA has met that threshold is still somewhat up for debate.  Will the ACA prove to be a robust solution over time?  Has it set a new norm in the health care area?  And have its critics been discredited?? For now, the answer to all of those appears to be yes.  But as I mentioned above, Republicans almost certainly aren’t done yet with their efforts at repeal, so it still remains to be seen whether the ACA will ultimately survive.

However, in her article, Prof. Gluck makes a pretty convincing argument that what we’ve seen so far in the battle over the ACA, especially in this past year’s attempt at repeal, does show us that the ACA has reached superstatute status.  And, note that Prof. Gluck begins her article by telling us that she had always been somewhat skeptical of the idea of superstatutes.  But watching this past year’s battle over the ACA has caused her to rethink that.  For her, the main focus is that the ACA has changed our norms.  Whether or not the ACA itself actually survives, Gluck believes it has changed our society’s attitudes around health care forever:

[W]hat 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?)

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 . . .

Now, we know that in reality, there were 49 Republicans who were ready to throw millions of people off of Medicaid.  And we know that none of the GOP health plans would have “covered everyone” like Trump promised.  But they weren’t able to pass those plans.  And the main reason for that is the various plans were enormously unpopular, ranging in the polls from something like 12 – 24% approval, and the GOP faced massive pushback from the public.

On top of that, in order to try to sell their various plans, Republicans had to lie about what the plans would do – they had to tell their constituents that the plans wouldn’t throw millions off of Medicaid.  (In fact, they had to claim that no one would be cut from Medicaid).  And they had to claim that more people would have health insurance on the GOP plan than on the ACA. And they had to claim that protections for preexisting conditions would be even stronger under their plan than under Obamacare.

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None of those things were true, but Republicans made all those claims because they knew that’s what the public wanted and had come to expect.  Listening to the arguments Republicans made to try to sell their plans to the public, it became quite clear that even they knew intuitively something that they failed to accept consciously – that the ground had shifted beneath them.  Since the implementation of the ACA, the American people now have a different standard for what they will accept – for themselves and for their fellow Americans – when it comes to our health care system.

And that is what has helped place Obamacare in the realm of superstatute: as Prof. Gluck says at the end of her piece, the ACA has transformed our norms with respect to health care and entrenched them in our shared belief system.  That will survive, whether Obamacare ultimately survives or not.  Republicans have been trying to do battle with some words on a piece of paper, not realizing that Obamacare’s real import has expanded far past the four corners of the page.  That’s why despite fighting so hard for the past 8 months, Republicans came out on the losing end every step of the way.  They failed to understand the true nature of their opponent.



*Even though Trump and the Republicans have failed to repeal the law, Republicans have over the years, and are continuing now to do everything in their power to sabotage the law’s implementation in order to make Obamacare fail.  Trump’s presidency has moved this effort into high gear.

I wrote extensively about this on the blog back in the spring and early summer, before it was getting attention from the mainstream media (enter “Obamacare” or “sabotage” into the search bar to find those entries).  Once the media started to pick up on it, as Trump became much more overt about this goal, I covered it less on the blog.  You can now find many articles out there about the sabotage by the Trump administration. (Here’s just one recent example out of hundreds.  And here’s one Prof. Gluck herself wrote for the NY Times last spring, so it doesn’t include some of Trump’s more recent tricks of the sabotage trade).  Additionally, the attempts at repeal – in and of themselves – have spooked insurance companies and  caused the Obamacare markets to become less stable.

And this week, possibly as soon as Thursday, Trump is expected to issue an executive order that has the potential to destroy the Obamacare markets, making it very difficult (if not impossible) for those with preexisting conditions – or really anyone who needs true health coverage – to get health insurance.  Vox explains here.

**Gluck also makes a point at the end of her article that – in addition to our norms – the ACA has changed our regulatory model for health care, by taking power away from the states and putting it in the hands of the federal government.  She notes that none of the GOP bills proposed to change that structure.

However, after the time her article was written, the Senate proposed the Graham-Cassidy bill, the main feature of which was to do exactly that – it almost entirely devolves regulatory power and funding to the states in the health insurance arena.  The bill failed, but even the GOP Senators who came out against the bill did seem to show positive inclinations toward that idea.  So I think this is one battle that is going to continue.  Prof. Gluck may be right, however, that for most Americans, the idea of the federal government being involved in regulating health insurance is now so expected that Republicans will have a very tough time making that change.

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