Health Care Reform in Political Time
As the health care bill crawls towards the Senate floor, I’d like to paraphrase my favorite Simpsons episode and say that I look forward to an orderly debate that will eliminate the need for a violent bloodbath. See Kang v. Kodos (1996).
The health case issue is playing out along the lines that I sketched out in my work on generational conflict in constitutional law. Each new movement eventually coalesces or or is identified with a major statutory initiative (the repeal of the Judiciary Act of 1801, the Indian Removal Act of 1830, the National Recovery Act of 1933, the Civil Rights Act of 1964, the Reagan Tax Cuts of 1981). That transformative effort is almost always met by intense resistance from the political branches or from the Supreme Court (Worcester v. Georgia, Schechter Poultry, the filibuster of the 1964 Act). This then leads both sides to engage in extraordinary procedural innovations to advance their agenda (judicial review, impeachment of Justices, Censure of the President, Court-packing).
Health care is now the signature measure of the Obama Administration. While the fight against the bill is still ongoing, the town halls during August definitely raised the political temperature far above a typical piece of legislation. (The length of the debate is another sign of this.) Now I’m waiting for the unusual procedures to emerge. Putting the bill through the Senate via reconciliation is the most likely candidate, but then again the innovation wouldn’t be extraordinary if I could easily predict what it will be.