Balkin on the ACA and the Social Contract

March 28th, 2013

Jack has an interesting new perspective on the ACA case.

Flash forward to today. During his first term in office, President Barack Obama made health care his signature issue. The Patient Protection and Affordable Care Act of 2010 (ACA) made the most significant change to the American social contract since the Great Society programs of the 1960s. It realized the long-held dream of progressives of universal and affordable care for everyone in the United States.

By the time the ACA was passed, however, the nature of the party system had radically changed. The New Deal and the Great Society had support from liberal and moderate Republicans as well as Democrats. But by 2010, there were almost no moderate Republicans left. The ACA was passed solely with Democratic votes, and the two parties were at loggerheads over the nature of the social contract. The new radical Republican Party wanted to roll back important aspects of the social safety net—the Paul Ryan budget was a blueprint for this new dispensation. Conversely, Democrats wanted to complete their long struggle for basic rights of health care.

Not surprisingly, the Affordable Care Act was challenged in the courts almost as soon as it was passed. A change this big in the social contract needed ratification by the federal courts. That is what this litigation was always about, and everybody knew it.

Nevertheless, the attack on the individual mandate captured an important theme in the radical Republican vision of the social contract: the government should not force some people to buy insurance that would effectively subsidize health care for others. Moreover, because federal laws normally don’t use mandates directed at the general public, the challenge would just take out the mandate and leave virtually every other federal law in place.


This reflects on a few themes I develop in my book about the competing constitutional visions, and competing views of the social contract on display in NFIB v. Sebelius (I alluded to it in this post).