The Health Care Test

The health care law's fate will help define government reach for years to come.

In the 235-year-old struggle to define the role of government in our country, the Patient Protection and Affordable Care Act enacted in March 2010 looks to be a milestone. From every corner of the constitutional landscape, it is attracting the kind of attention rarely seen since Franklin Roosevelt's New Deal produced novel theories of government power that were challenged repeatedly in Congress and the Supreme Court.

Now an epic struggle to kill the health care law will be the leading edge in a broader attack on federal powers to regulate other key sectors of the nation's economy. Also in the crosshairs are the new financial regulatory law, the huge federal institutions propping up the housing markets and government efforts to curb greenhouse gases. The Affordable Care Act is so important in this debate because the law does, as its critics say, move the United States further toward a welfare state. To be sure, we already have programs that give people cash grants and subsidies, but we do not have the kind of cradle-to-grave approach found in Europe. We take care of seniors and veterans, and offer tax credits for the working poor, and occasionally single out special groups as Congress did in December 2010 with Sept. 11 first responders, but we haven't said to the middle class that government will step in broadly to assure their health, education and welfare.

The Affordable Care Act seeks to promote the welfare of middle- and lower-income citizens by providing subsidies and offering peace of mind about the unaffordable health care bills people fear they might face.

Is this "socialism," as critics charge? Or is it government fulfilling its obligation to shore up the middle class?

It's instructive to look back on what is often considered the most successful of programs to build the middle class, the 1944 Servicemen's Re-adjustment Act, known as the GI Bill. When it was under debate in Congress, opponents beat back proposals to extend its benefits to more people through a British-style welfare agency. But as University of California-Berkeley assistant professor Kathleen J. Frydl observes in The GI Bill (Cambridge University Press, 2009), the broad menu of loan guarantees for a house, business or farm, tuition, unemployment compensation, and no-cost health care, constituted a welfare regime for a large class of people. Thus, she writes, "Over a discrete period of time, for veterans and their families, there was a strong welfare state, a provisional but impressive victory of social policy and federal power [but which] came at the expense of more universal coverage."

The GI Bill helped create the American middle class. But since it ended, there has been no other program to bolster this group-the current White House's middle-class task force notwithstanding.

Frydl observes the GI Bill found support in Congress in part because an important institution, the Veterans Administration, already was in place to provide an administrative home for all the new programs. "The creation of policy is, in the United States, only the beginning of the story," she writes. "Regulatory power, those countless decisions made by agencies during implementation, or remedial schemes designed to rectify faults of the original policy, are both tremendous reservoirs of state power."

As with the GI Bill, the Affordable Care Act confers sweeping regulatory duties to government agencies. While the law's big-government philosophy is under attack in Congress, the health care program seems more vulnerable at the moment in the regulatory arena. House Republicans have said they will examine "every dime the administration is seeking to spend on implementation." And a key provision of the law is headed for review by the Supreme Court after a Virginia judge ruled the requirement that individuals buy health insurance fails to pass constitutional muster.

As National Journal reported in December, the newly powerful GOP contingent in Congress will "lay an oversight paper trail" critical of many administration policies, and then will move, as GOP majorities did in the 1990s, to defund or block steps agencies must take to implement laws and regulatory strategies.

All of this will constitute an attack on the power of government. But in defining the scope of the U.S. welfare state, no battles are more important than those under way in Congress and the courts to decide if the new, fragile health care law can long survive.