Of Icebergs and Glaciers: The Submerged Constitution of American Healthcare

I INTRODUCTION 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) (1) 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 for a. Clearly the ACA's wisdom and its constitutionality will be a major issue in the national popular election of 2012 and most likely those of 2014 and 2016 as well. Opposition to the Act has already manifested in profligate state legislative and referendum activity: By my count, in the fall of 2011 there were 197 separate state statutes or referenda pending in the fifty states, many bearing evocative titles like Missouri's "Big Government Get Off My Back Act," (2) which purports to exempt small businesses from enforcement of various state and federal mandates. This immediate popular opposition is important and interesting, and treated in nuanced fashion in several other papers in this symposium. (3) My aim in this short article is to place the current constitutional litigation in an even broader frame of reference than that of the present day's popular constitutionalism. Taking a much longer temporal view, it is possible to regard the current debate over the ACA as but one episode in an ongoing process of legal and normative construction and contestation about the proper locus of authority in American medicine that stretches back well into the nineteenth century. Like the small portion of an iceberg visible above the waters, the current ACA litigation is merely the most visible and immediately salient manifestation of much more enduring public concerns about institutional intrusion on individualistic choice in medical care. The embrace of highly diffuse authority over medical decisions has long been prioritized by patients and physicians, and will continue to hold a powerful sway over public attitudes long after the dust has settled on this episode of litigation. Yet the fragmentation and resistance to institutional control--whether public or private institutions--that has for years characterized the healthcare delivery system in the United States is becoming increasingly unsustainable and problematic. …