Health Deform

The Iv(or)y

In the wake of the Republican Senate victory in Massachusetts, Democratic leaders in Congress must recalibrate their approach to health care reform. Recriminations have run back and forth and it now seems obvious that an incremental approach would have increased the likelihood of success. The “silver bullet” versions of the reform bill that emerged from the House and the Senate proved ungainly and, ultimately, unpopular.

But there are still more basic questions to ask about health care reform. Why is it hard to pass a bill, any bill, reforming health care? We’ve heard a litany of arguments proffered by the chattering classes: vested special interests, separation of powers, and the complexity of the issue just to name a few. But most of these obstacles confront any significant piece of legislation, and many of them pass nonetheless.

This post argues that the problem in the instance of health care is structural, having to do with the non-delegation doctrine and, frankly, Congress's incentives to husband institutional power. Thus, Democrats should be wary as they reevaluate their options. Whatever polling tells them (and it would seem that they’ve received some really terrible polling), they need to be aware of what reforming and eventually universalizing health care means institutionally.

It’s no great leap to observe that Congress wants to control the particulars about any piece of legislation insofar as possible. This is especially true when legislation creates new executive powers. Technically, Congress cannot delegate any of its legislative powers to the executive branch; it can only create new executive powers. And creating new executive power is precisely what a health care bill does of necessity. It opens the door to regulating the health of all or nearly all Americans either directly or indirectly and that means a greater role for the executive branch.

Before the libertarians panic, let’s be honest about the importance of vigorous and responsive government. Many aspects of our lives are subject to regulation and oversight by government agencies and we are more or less willing to tolerate this interference. Assuming that most Americans accept state interference or even control in a part of society – take defense as an example – we generally want that interference to be efficient, unobtrusive, and responsive. Americans are thus not against government per se; they just want the chance to determine its limits and hold it to account. This is true of Republicans and Democrats alike. Where they differ most, in some sense, is in what areas they’re prepared to accept government interference.

Let’s assume for the sake of argument that most Americans are prepared to accept government interference in the health care system above and beyond what already exists. Nay, let’s go even further and assume that most Americans want universal health care coverage. They’re going to want that coverage to be delivered efficiently and affordably, both on the supply and the demand side. They’re not going to want to wait in long lines, to receive inadequate care, or to have their concerns ignored. Similarly, as taxpayers, they’re going to want the system to function affordably without damaging the economy and requiring ever-expanding tax increases. This is a pretty serious burden: services must remain adequate but costs must be kept under control.

On the one hand, the legislature is generally viewed as the most responsive branch of government. But that doesn’t necessarily make it the best administrative unit. As such, the legislature might not be the best site of administrative design for resolving the question “how do we cover all Americans.” Indeed, many of the problems with health care are essentially administrative and could be resolved with greater efficiency through executive administration.

But as mentioned above, Congress can't delegate authority tantamount to legislative power to an executive actor. Hence the line between administrative prerogative and legislation becomes central to the validity of whatever bill gets passed. While the Supreme Court is unlikely to interfere in any major legislation that doesn’t imply a drastic interference with established and precedent-protected rights, the way legislators think about the administrative aims of the executive powers that a health bill will create matters in terms of formulating legislation.

Technically, Congress could enumerate a series of broad goals and then sketch a general outline of a bureaucratic administration charged with overseeing those goals. Consider, for example, the 1789 Chapter XII Act, which established the Treasury Department. It has eight sections enumerating the responsibilities of the department, providing for some procedural restrictions, and structuring the offices to avoid general conflicts of interest. Obviously, it's not a case study for a vastly expanded bureaucracy contending with a nationally-integrated, highly diversified, and rapidly changing economy. Nonetheless, the bill’s “high level” approach might be an ideal type for this kind of legislation: enumerate the big goals, provide some basic structures, and then create real executive power to operate within the limits stated.

Such an approach is inherently risky – creating executive power is never something to be taken lightly. But for health reform to be effective, a lot of leeway needs to be built into the institutions responsible for its maintenance. Moreover, this forces Americans to confront the real question of “how much government is too much government.”

However, Congress almost always errs on the side of non-delegation (except in economic crises). One also has to do some logrolling and some interest group buying, so reform legislation balloons. And then negotiators get into particulars and the various Congressional committees clash with one another over oversight responsibilities. In the end, they all try to carve out their own niches and, above all, do a lot of executive hand-tying to ensure that executive actors can't overstep their remits once the new system comes online.

Unfortunately, this wary approach usually just leads to administrative insanity. Worse yet, it can create conflicting structures seeking, ostensibly, the same goals. Moreover, explicitly enumerating policy provisions to the level of minutia helps to harden opposition to it. Congressmen seem to forget that it takes a lot of reasons to like a bill, but only one to hate it. Big bills foment and define their own opposition, making them extremely vulnerable.

So, to wrap up, the reason that Congress can't pass a health bill is because its institutional incentives disincline it to do so. The only real way to provide this kind of coverage is to create real executive power, but Congress isn't prepared to do that without adding tons of unhelpful riders and pork.

A good health care bill won’t try to dovetail into the existing bureaucracy. Instead, it will scrap or combine existing agencies and bodies and largely start over. Indeed, it would look best if it totally rehashed Health and Human Services. The bill could punt Human Services into its own Outer Cabinet Department or combine it with HUD, and change Medicare and Medicaid to subsidiary bureaus within a newly minted Department of Health that could sit firmly in the Middle Cabinet along with Agriculture, Commerce, Interior, and Labor.

Instead, Congressmen are thinking like administrators (which they're not) trying to provide immediate services to consumers (i.e. voters nearing an election year) rather than thinking like institution builders. Until the mindset changes, they're going to continue churning out big, self-defeating bills.