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127 Yale L.J. F. 1 (2017-2018)

handle is hein.journals/yljfor127 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM APRIL 24, 2017 Federalism and the End of Obamacare Nicholas Bagley AB S TRACT. Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoreti- cally grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal ac- tion is necessary to overcome the states' fiscal limitations: their inability to deficit-spend and the constraints that federal law places on their taxing authority. A more refined understanding of the functional justifications for federal action enables a crisp evaluation of the ACA- and of replace- ments that claim to return authority to the states. The election of Donald Trump and an ascendant Republican majority in Congress may mean the end of the Affordable Care Act (ACA), better known as Obamacare.' As of this writing, Republican efforts to repeal and replace the ACA have become mired in an intraparty fight between hardliners who favor outright repeal and moderates concerned about ripping insurance away from millions of people. But talks among Republicans continue, and the political sit- uation remains fluid. Only time will tell. As the debate over health reform continues to rage, one question that is likely to emerge - indeed, it has already emerged- is why national reform was ever thought necessary in the first place. At the core of our federal system is the principle that the states should take the lead unless there is a need for national 1. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codi- fied as amended in scattered section of 26 and 42 U.S.C.), amended by Health Care and Edu- cation Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010). For ease of ref- erence, and unless otherwise noted, citations will be to the scattered provisions of the U.S. Code codifying the ACA.

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