Re-Negotiating a Theory of Social Contract for Universal Health Care in America or, Securing the Regulatory State?

42 Pages Posted: 16 May 2014 Last revised: 29 Jul 2014

See all articles by George P. Smith

George P. Smith

Catholic University of America (CUA) - Columbus School of Law

Richard Gallena

Loyola University Maryland; Catholic University of America (CUA) - Columbus School of Law

Date Written: 2014

Abstract

Political ideologies and evolving notions of social justice have shaped public health policies throughout American history in a quest to find a point of balance between the collective good and economic realities. In pursuit of this balance, Congress enacted the Affordable Care Act in 2010. This Article first examines the new law through the lens of the social contract as envisioned by Rousseau and adopted by the Framers of the Constitution. Using economic data, public opinion, and information from the medical community, Smith and Gallena proceed to offer a frank appraisal of the state of health care in America and the future implications of the Act.

The Article then examines the structure, power, and mandate of the Independent Payment Advisory Board (IPAB). Created by the Affordable Care Act, the IPAB simultaneously concentrates legislative authority in an autonomous executive agency, while shielding its actions from judicial review. Smith and Gallena argue that the IPAB undermines the fundamental principle of the separation of powers, poses an inevitable threat to current and future Medicare beneficiaries, and may ultimately destabilize the state of healthcare in the United States. Finally, Smith and Gallena propose a model for allocating health care resources that comports with both the philosophical underpinnings of the social contract and social justice.

Suggested Citation

Smith, George P. and Gallena, Richard, Re-Negotiating a Theory of Social Contract for Universal Health Care in America or, Securing the Regulatory State? (2014). Catholic University Law Review, Vol. 63, No. 1, Pp. 1-40, 2014, CUA Columbus School of Law Legal Studies Research Paper No. 2014-2, Available at SSRN: https://ssrn.com/abstract=2437401

George P. Smith (Contact Author)

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

Richard Gallena

Loyola University Maryland ( email )

4501 North Charles Street
Baltimore, MD 21210-2699
United States

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

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