Quasi-Constitutionalism and Informal Legislative Entrenchment: The Case of the Affordable Care Act
Richard Albert & Joel Colon-Rios, Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, and Applications, Routledge, 2018, Forthcoming
27 Pages Posted: 14 Dec 2017 Last revised: 18 Mar 2018
Date Written: December 12, 2017
Quasi-constitutional statutes — at the resemblance of constitutions — aim to entrench core social values. Quasi-constitutional statutes are able to root these values because they persist through time and are able to stand up well to societal, political and economic changes and judicial challenges. Nonetheless, the legal literature has not attended to the informal forces that explain the entrenchment of legislation. These forces, however, are behind their long-lasting nature and the democratic acceptance of statutes that eventually acquire a quasi-constitutional character. In this book chapter, I draw on interdisciplinary literature and the specific case of the Affordable Care Act and other US health care programs to describe how certain statutes become informally entrenched and resist legislative reform. The slow-going changes in the US health care sector and the current difficulty in repealing or amending the Affordable Care Act can help us understand the role of social, political, and bureaucratic elements in the entrenchment of quasi-constitutional statutes.
Keywords: entrenchment; quasi-constitutionalism; amendment; sunk costs; path dependence; health care law; legislation
JEL Classification: K19; K30
Suggested Citation: Suggested Citation