Beyond the Market: The Role of Constitutions in Health Care System Convergence in the United States of America and the United Kingdom

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Id. (Blackman), at xx

id. (Pownall), at 422–424.

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See Davies , supra note 1, at 565–566. Similar principles to those contained within the HSCA find their roots in a report published by the Labour Government in 2002, see Department of Health, Delivering the NHS Plan (Command Paper 5503 April 2002): At para. 2.

Maclean N. , Distributing Health Care: Principles, Practices and Politics (Charlottesville: Imprint Academic, 2007): At 2–3;

Democratic Policy and Communications Committee, The Patient Protection and Affordable Care Act: Detailed Summary, available at <http://dpc.senate.gov/healthreformbill/health-bill04.pdf>(last visited November 3, 2014);

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Lameie N. Joffe P. Wiedermann M. , “Health Care Systems- An International Review: An Overview,” Nephrol Dial Transplant 14, Supp. 6 (1999): At 3–9A.

See 26 U.S.C. § 5000A(a);

Parmet W. E. , “The Individual Mandate: Implications for Public Health Law,” Journal of Law, Medicine & Ethics 39, no. 3(2011): 40–423, at 401.

See Davies , supra note 1, at 567.

A consideration for the future is whether this “convergence ” is upon a Bismarckian ground; however, this is outside the scope of this essay.

Wendt C. Grimmeisen S. Helmert U. Rothgang H. Cacace M. , “Convergence or Divergence of OECD Health Care Systems?” Working Paper No. 9, University of Bremen, Collaborative Research Center 597: Transformations of the State, 2004.

Organization for Economic Cooperation and Development, “The Reform of Health Care Systems: A Review of Seventeen OECD Countries,” Health Policy Study No. 5, 45 (1994): At 61: “The most remarkable feature of the health system reform among the seventeen countries is the degree of emerging convergence.”;

Minow M. , “Is Pluralism an Ideal or a Compromise?” Connecticut Law Review 40, no. 5(2008): 1287–1314, at 1300.

While the United Kingdom does not have a “Constitution,” a codified document in the American sense, it does have a constitution, a collection of rules for government. See Bogdanor V. , The New British Constitution (Oxford: Hart Publishing, 2003): At 3–11;

Zurcher A. J. , Constitutions and Constitutional Trends Since World War II: An Examination of Significant Aspects of Post War Public Law with Particular Reference to the New Constitutions of Western Europe (Oxford: OUP, 1952): at 175–176.

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Balkin J. , Living Originalism (Cambridge: HUP, 2010): At 4.

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See Blackman , supra note 1, at 1.

See Davies , supra note 1, at title.

See Pownall , supra note 1, at 422.

Id., at 423.

Id., at 424.

Klein R. , The New Politics of the NHS: From Creation to Reinvention (London: Radcliffe, 2013): At 279.

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See Klein , supra note 22, at 279.

See Fund King's , supra note 1, at 4.

Health and Social Care Act 2012, s75(1)(c).

Id., a75(1)(b).

Id., ss 61–70. One potentially tricky consequence of competition in UK health care is the extent to which it renders the NHS and its associated bodies subject to both domestic and European Union competition law. Space precludes a discussion here but Goulding's overview provides a flavor of the issues: <http://eutopialaw.com/2013/07/19/is-the-nhs-subject-to-competition-law/>(last visited November 3, 2014).

Id., at ss72–80.

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Hansard, Debbie Abrahams (Oldham East and Saddleworth) (Lab), HC, 31 Jan 2011: Column 646

Hansard Wicks Malcolm (Croydon North) (Lab), HC, January 31, 2011: Column 671

Hansard Healey John (Wentworth and Dearne) (Lab) HC: 31 Jan 2011: Column 624.

Representative Poe (Tx.), “Will We Choose Tyranny or Liberty?” Congressional Record (March 21, 2010), Daily Ed. H1821

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[Representative] Blackburn (Abbreviated state.), “Freedom Dies a Little Bit Today,” Congressional Record (March 21, 2010), Daily ed. [H1820];

Hansard Burnham Andy (Leigh) (Lab) HC, 20 Mar 2012: Column 718;

see King's Fund, supra note 1.

Hansard Healey John (MP) (Lab) HC, January 31, 2011: Column 627, “will create the monster of a full-blown market in health care which GPs will not control and nor will Ministers or Parliament”

Hansard Donaghy Baroness , HL, October 12, 2011: Column 1693.

Representative Poe, “No to Government-Run Health care,” Congressional Record (November 6, 2009), H12554

Representative Poe, “Health care Rationing Could Result in Death Penalty in the United Kingdom,” Congressional Record (June 12, 2009), H6622.

Hansard Davies Geraint (Swansea West) (Lab/Co-op) HC, January 31, 2011: Column 687.

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Hansard , Health and Social Care Bill – Committee (7th Day), HL, November 22, 2011: Column 990.

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See Russell , supra note 45, at 103–104.

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Id.

Open Congress, available at <http://projects.washingtonpost.com/congress/111/house/members/> (last visited November 4, 2014): Identifies that Representatives sided with their party position 94% of the time.

“Congress is becoming more like a parliamentary system – where everyone simply votes with their party and those in charge employ every possible tactic to block the other side. But that is not what America is all about, and it's not what the Founders intended. In fact, the Senate's requirement of a supermajority to pass significant legislation encourages its members to work in a bipartisan fashion.” – Senator Snowe, “Why I'm Leaving the Senate,” Reader Supported News, available at <http://readersupportednews.org/opinion2/270–37/10252-focus-why-im-leaving-the-senate>(last visited November 4, 2014).

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Id., at The Federalist No. 52, at 324.

See Open Congress, supra note 49.

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Hansard Richard Lord , HL, October 14, 1998, Columns 945–6.

Id. (Russell and Sciara), at 8.

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Id. (Halpin and Harbage), at 1121.

Fisk C. Chemerinsky E. , “The Filibuster,” Stanford Law Review 49, no. 2 (1997): 181–254, at 181, 199–200, explaining the tradition of the filibuster.

Jacobs L. Skocpol T. , Health Care Reform and American Politics: What Everyone Needs to Know (New York: OUP, 2012): At 191, defining Lieberman as “necessary.”

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See Jacobs Skocpol , supra note 63, at 77–82.

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See Brasfield , supra note 64.

Bogdanor V. , The Coalition and the Constitution (Oxford: Hart, 2011): At 1–9. Provides a good summary of the party positions post 2010 General Election.

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Conservative Party Manifesto 2010 General Election, Invitation to Join the Government of Britain, at 45.

Id.

See King's Fund, supra note 1, at 131–133.

Liberal Democrat leader, Nick Clegg, in fact told his party that because of their work, NHS reform was now “ evolution and not revolution.”

See The King's Fund, supra note 1, at 48.

Liberal Democrat Manifesto 2010 General Election, at 40.

See The King's Fund, supra note 1, at 48.

Liberal Democrats, Health and Social Care Bill Achievements, available at <http://www.libdems.org.uk/siteFiles/resources/docs/policy/Health/HSC%20Bill%20Achievements%20March%202012.pdf>(last visited February 6, 2014). “The Bill in its current form is markedly different to the original legislation, and many of the changes are the direct result of the hard work and scrutiny of Liberal Democrats.”.

Id.

Department of Health, Government Response to the NHS Future Forum report, Cm 8113, June 2011.

See King's Fund, supra note 1, at 126–138.

See Liberal Democrats, supra note 79, at 2–4, at 7.

Id., at 3.

Id., at 3, at 7–8.

Id., at 4.

Id., at 3.

See King's Fund, supra note 1, at 118–119.

Over the past 50 years, The President, House of Representatives and Senate have only been controlled by the same party for sixteen years.

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Donahue J. , Disunited States (New York: Perseus Books Group, 1997). The U.S. is one of the few Western liberal democracies in which political parties, at different institutional levels, are not expected to follow the same policies.

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Id., a 1.

Id.

Blue Dog Coalition, “Mission Statement,” available at <http://bluedog.schrader.house.gov/about/mission.htm>(last visited November 4, 2014).

See Adams and Gibbs, supra note 92, at 1.

Id., at 2–3.

See Jacobs and Skocpol, supra note 63, at 116–117.

Id., at 80.

Id., at 99–100.

Jacobs and Skocpol discuss the “old issue” of federal spending on abortion.

Iglehart J. K. , “Rallying the Caucus- The Democrats' Struggle for Unity on Reform,” New England Journal of Medicine 64, no.1 (2014) 1–3.

Executive Order 13535, “Patient Protection and Affordable Care Act's Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion.”

The text is available at <http://housedocs.house.gov/rules/3962/Stupak3962_108.pdf>(last visited November 4, 2014).

See Jacobs Skocpol , supra note 63, at 57.

Frakes V. L. , “Partisanship and (Un)compromise: A Study Of The Patient Protection and Affordable Care Act,” Harvard Journal on Legislation 49, no. 1(2012): 135–149, at 137–139.

Jacobson P. D. Lauer J. R. , “Health Reform 2010: Incremental Advance or Radical Transformation?” Arizona State Law Journal 42, no. 4(2010): 1277–1291, at 1281.

See Blackman , supra note 1, at 30–31.

42 U.S. Code § 1395dd (1986).

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Opening Ceremony show, viewed worldwide by 900m people.

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See Fleck , supra note 113, at 148.

Id., at 144.

Id., at 158.

Maclean N. , “Philosophical Approaches to the Problem of Health Care Distribution,” in Maclean N. , Distributing Health Care: Principles, Practices and Politics (Charlottesville: Imprint 2007): At 41–90, at 44–46.

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Id.

See Fleck , supra note 113, at 145.

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Hansard Dobson Frank (Holborn and St Pancras) (Lab) HC, 31 Jan 2011: Column 631.

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Id.

Representative Price, “Dark Day for America,” Congressional Record (March 22, 2010) [H2175].

See Pownall , supra note 1.

See Glennerster Lieberman , supra note 108, at 7.

Hansard, Baroness Williams of Crosby (Lab) HL, 11 Oct 2011: Column 1517.

Id.

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Hansard Howe Earl , (Con) HL, October 12, 2011: Column 1706.

Id.

Id.

For a comparison between the ACA and Heritage Foundation Report, see J. Wriggins, “Mandates, Markets, and Risk: Auto Insurance and the Affordable Care Act,” Connecticut Insurance Law Journal 19, no. 2(2012): 275–318, at 285–287, and fn14 extensively.

Heritage Foundation, “A National Health Care System for America,” available at <http://www.heritage.org/research/reports/1989/a-national-health-system-for-america>(last visited November 4, 2014).

See Blackman , supra note 1, at 7.

Hacker J. , “The Road to Somewhere: Why Health Reform Happened or Why Political Scientists Who Write about Public Policy Shouldn't Assume They Know How to Shape It,” Perspective on Politics 8, no. 3(2010): 861–876, at 867.

See Blackman , supra note 1, at 24.

Cooper M. , “Conservatives Sowed Idea of Health Care Mandate, Only to Spurn It Later,” New York Times, February 5, 2012.

See Blackman , supra note 1, at 42. Blackman is critical of Romney for failing to make this argument with any conviction during the 2012 presidential election.

Holan A. D. , “RomneyCare & ObamaCare: Can You Tell the Difference?” available at <www.politifact.com/truth-o-meter/article/2011/may/18/romneycare-and-obamacare-can-you-tell-difference>(last visited November 4, 2014).

See The King's Fund, supra note 1, at 18–21.

See The King's Fund, supra note 1, at 6.

See Davies , supra note 1, at 565.

See The King's Fund, supra note 1, at 18.

Davies A. C. L. , “Foundation Hospitals: A New Approach to Accountability and Autonomy in the Public Services?” Public Law X, no. 4 (2004): 808–828.

See The King's Fund, supra note 1, at 18–19.

The Labour Party Manifesto 2010, A Fair Future for All, available at <http://www2.labour.org.uk/uploads/TheLabourPartyManifesto-2010.pdf>(last visited November 4, 2014): At 4:3.

See Glennerster Lieberman , supra note 108, at 5–8.

Watson A. , Legal Transplants (Georgia: University of Georgia Press, 1993): At 21.

See Glennerster Lieberman , supra note 108, at 7.

Id., at 26–28.

Id., at 15–16.

Id., 26–28.

See Balkin , supra note 14, at 4.

Tolson J. , “The Union As A Safeguard against Faction: Congressional Gridlock as State Empowerment,” Notre Dame Law Review 88, no. 5(2013): 2267–2287.

Easterbrook F. H. , “On Constitutional Changes to Limit Government,” Northwestern University Law Review 102, no. 102(2008): 469–473.

Dahl R. A. , How Democratic Is the American Constitution? (New Haven: Yale University Press, 2004): At 24–25.

National Federation of Independent Small Business v. Sebelius, 132 S.Ct. 2566 (2012).

House of Lords Select Committee on the Constitution, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–2002, 11) (2001)

House of Lords Select Committee on the Constitution, Health and Social Care Bill (HL 2010–12, 197) (2010).

Marriott J. Fletcher J. , “By Any Means Necessary? The Constitutionalisation of Health Care in the United States, United Kingdom and Brazil,” in Allhoff F. Hall M. , The Affordable Care Act Decision Philosophical and Legal Implications (London: Routledge, 2014): At 55–72.

See Balkin , supra note 14.

Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin, and Wyoming.

Appellate Brief for State Respondents on the Minimum Coverage Provision, 2012 WL 392550 (U.S., Feb. 6, 2012): At 1.

Id., at 15–51.

South Dakota v. Dole, 483 U.S. 203 (1987).

See NFIB, supra note 161, at 2604–2605.

Appellate Brief, Reply Brief for State Petitioners on Severability, 2012 WL 888995 (U.S., March 13, 2012).

See Appellate Brief for State Respondents on the Minimum Coverage Provision, supra note 166, at 18.

Jacobi T. , “Obamacare as a Window on Judicial Strategy,” Tennessee Law Review 80, no. 4(2013): 763–849, particularly at 778. This whole article, however, wrestles with how Roberts' judgment recasts the ACA.

Id., at 777, this “reduced the cost.”

Barnett R. , “We Lost on Health Care. But the Constitution Won,” Washington Post, available at <http://www.washingtonpost.com/opinions/randy-barnett-we-lost-on-health-care-but-the-constitution-won/2012/06/29/gJQAzJuJCW_story.html>(last visited November 4, 2014).

See NFIB, supra note 161, at 2589–2591.

Id., at 2594–2601.

See Barnett , supra note 174, at para. 14.

Clark B. , “A Moral Mandate & the Meaning of Choice: Conceiving the Affordable Care Act After NFIB,” St. Louis University Journal of Health Law and Policy 6, no. 2(2013): 267–317, at 285.

Cooter R. Siegel N. , “Not the Power to Destroy: An Effects Theory of the Tax Power,” Virginia Law Review 98, no. 6(2012): 1195–1250.

See NFIB, supra note 161, at 2579. “Congress may also ‘lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.’ U.S. Const., Art. I, § 8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”.

Rivkin D. B. Jr. Casey L. E. Grossman A. M. , “NFIB v. Sebelius and the Triumph of Fig-Leaf Federalism,” Cato Supreme Court Review 31, no. 1(2011): 31–65, at 32.

§ 1396a(a)(10)(A)(i)(VIII).

See NFIB, supra note 161, at 2605.

Id., at 2634.

Id., at 2602.

Id., at 2604.

Id., at 2602–2605.

Id., at 2603.

Guerrero A. A. , “Coercion, Political Accountabilkity, and Voter Ignorance: The Mistaken Medicaid Expansion Ruling in NFIB v Sebelius,” Public Affairs Quarterly 27, no. 3(2013): 199–214, at 202–203.

See NFIB, supra note 161, at 2608.

See Jacobi , supra note 172, at 813–821.

See NFIB, supra note 161, at 2667.

See Jacobi, supra note 172. Of course, this is partial due to the Dissent believing the ACA's use of the Spending Clause to be far more draconian than any before…. M. Minow, “Affordable Convergence: ‘Reasonable Interpretation’ and the Affordable Care Act,” Harvard Law Review 126, no. 1(2012): 117–153, at 130.

Ewing K. , “The Resilience of the Political Constitution,” German Law Journal 14, no. 14(2013): 2111–2136, at 2135. “The underlying legal principle is the principle of parliamentary sovereignty, which is no more than a legal principle underpinning the idea of popular sovereignty, whereby the people through their elected representatives and accountable government should be free to determine the rules by which they are governed.”.

Dicey A. V. , Introduction to the Study of the Law of the Constitution, 10th ed. (Basingstoke: Macmillan, 1959).

See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.

See House of Lords Select Committee on Constitution-Reviewing the Constitution: Terms of Reference and Method of Working, supra note 162, at para. 4.

See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.

Id.

Regina v Secretary of State for the Environment, Transport the Regions [2001] UKHL 23, para. 144. Lord Clyde outlines how removing any link between the Secretary of State or Government Department and Parliament would undermine a convention “rooted in the ideas of democracy and the rule of law”.

Murkens J. E. K. , “The Quest for Constitutionalism in Public Law Discourse,” Oxford Journal of Legal Studies 29, no. 3(2009): 427–455, at 432–436.

This list is far more exhaustive.

See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.

See House of Lords Select Committee on Constitution-Health and Social Care Bill Follow Up, supra note 162, at para. 8.

See Health and Social Care Act 2012, supra note 162, at s1(3).

See Davies , supra note 1, at 576.

Barnett R. E. , “No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)?” Florida Law Review 65 (2013): 1331–1348, at 1337–1338;

see House of Lords Select Committee on the Constitution, supra note 162.