Of Icebergs and Glaciers: The Submerged Constitution of American Healthcare

The United States is presently in the midst of a fractious and polyphonic debate about the future shape of its healthcare finance and delivery system. Spurred in significant part by the controversial passage of a major federal health insurance statute two years ago, this debate implicates foundational questions of government authority and constitutional limitation that have transcended the traditional boundaries of health law. Although in many respects it is an incomplete and unfinished reform, the Patient Protection and Affordable Care Act (ACA) manifests a new congressional focus on insurance regulation and expanded access and raises significant questions about, and opposition to, the increased role of the federal government and the new federal and state bureaucracies that the Act creates. As with other episodes of transformative legal restructuring in the United States and elsewhere, the ACA (or more accurately, the future transformation of medical care delivery that it may portend) has provoked vigorous opposition in legal and political discourse. And also, as with earlier episodes of constitutional transformation, this dissent sounds in multiple registers and employs different oppositional vernaculars and diverse institutional levers in an effort to thwart the full implementation of the ACA’s regulatory measures. The most visible strand of this opposition is the multifaceted litigation against the constitutionality of the individual mandate that has proceeded in various federal courts around the country and is presently before the U.S. Supreme Court. Couched within the familiar decisional forum of the federal courts, the litigation offers the prospect of a determinate institutional statement on the question of the individual mandate’s constitutionality within a reasonably predictable time frame. No such institutional centrality or prospect of finality exists in the roiling popular opposition to the ACA and related health reforms that are playing out in various extrajudicial fora. Clearly the ACA’s wisdom and its constitutionality