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.
George P. Smith, II, Re-Negotiating a Theory of Social Contract for Universal Health Care in America or, Securing the Regulatory State?, 63 CATH. U. L. REV. 1 (2014).