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

handle is hein.journals/yljfor127 and id is 1 raw text is: 

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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