The Ghosts of the Affordable Care Act

Gabriel Scheffler (University of Miami), The Ghosts of the Affordable Care Act, 101 Wash. U. L. Rev. (2024):

The Patient Protection and Affordable Care Act (ACA) is perhaps the most important piece of social legislation enacted in the United States in the last fifty years. Yet the ACA that exists today is not the same law that was passed by Congress in 2010. Rather, several of the most consequential provisions of the law have since been repealed or scaled back by Congress or the courts, some of them without having ever taken effect, and others with remarkably little fanfare. This Article offers an analysis of these “ghosts” of the Affordable Care Act. Appraising these ghosts together reveals that, in several respects, the law that exists today is far more modest in its scope and effects than the version originally signed into law.

Bringing these ghosts to light reveals a puzzle: the conventional wisdom is that it is incredibly difficult to dismantle social programs that confer benefits. Yet not only have significant sections of the ACA disappeared, but also the ACA itself came quite close to being invalidated on multiple occasions. So what happened? The ACA’s ghosts can be traced in part to what this Article calls its “enactment-entrenchment tradeoffs”: the tradeoffs that legislators were forced to make between enacting the law and ensuring its durability over time. The Article argues that such tradeoffs are not unique to the ACA, and in fact have become more pronounced over time. It revisits the conventional wisdom that social programs are difficult to dismantle and suggests that newly enacted programs are in fact quite vulnerable. It concludes by arguing that lawmakers must change the rules of the game that govern these tradeoffs if they wish to ensure that new social programs will survive.