The Flip Side of Subsidiarity

SOMETIMES IT TAKES MORE THAN A VILLAGE

Over the course of three days in March, the Supreme Court spent six hours hearing oral arguments about the most significant achievement of Barack Obama’s first term: the Affordable Care Act—or, as it is now called by both supporters and detractors, “Obamacare.” The case before the court has to do with the law’s requirement that everyone above a certain income level buy health insurance or pay a penalty. (Those who cannot afford coverage on their own will receive financial assistance.) In principle, the mandate was a step toward universal coverage—and the best way to make sure that insurers could afford to cover those who need health insurance the most. For some critics, however, the mandate has confirmed suspicions that Obama and his fellow Democrats are determined to implement a government takeover of health care. The question before the Court is straightforward: Can the federal government require all Americans to purchase a product (health insurance) on the private market? But the question underlying the case is one of the most basic in American political life: How much government is too much?

The Catholic Church has never attempted to answer this question definitively, but it has proposed subsidiarity as the general principle that ought to govern how power and responsibility are distributed among various actors in a society. In his 1991 encyclical Centesimus annus, Pope John Paul II offered a brief definition of subsidiarity: “Needs are best understood and satisfied by people who are closest to them.” Individuals and small communities have a better handle on the challenges they confront than large centralized institutions. Whenever they can deal effectively with their own local problems, they should.

On some interpretations of subsidiarity, however, it amounts to little more than an endorsement of small-government libertarianism, unequivocally favoring local autonomy and resisting intervention by the federal government. One hears this version of subsidiarity invoked periodically by conservative politicians as a justification for their allergy to robust federal regulation and national welfare programs. But an honest account of subsidiarity recognizes its flip side: when problems are of such magnitude or complexity that they can’t be addressed locally, higher-level authorities must take responsibility. Some matters are simply beyond the capacity of local or state governments, and they demand a broader response. As theologian David Hollenbach of Boston College has written, “the principle of subsidiarity does justify state intervention whenever this is necessary for the remedy of harm or the promotion of the common good.” For example, interstate transportation, the national defense, and national energy policy are all matters of the national common good, and they require action at the federal level. Subsidiarity calls for solutions from the bottom up whenever possible, but demands action from the top down whenever necessary.

Catholic social thought recognizes the limitations of unregulated markets and supports government intervention when vulnerable people are at risk or the spoils of economic activity are too concentrated. Health care in the United States is a prime example of how a market, left to its own imperatives, can fail to meet an important social need. Quality care is available to those who can afford it, while those without insurance often lack access to the care they need. Insurance is most costly for those who need it most, and insurance companies avoid covering expensive patients with relative impunity.

With the partial exception of Massachusetts, the states have been unable to deliver on health-care reform, and there are reasons to think that a state-by-state approach would either not work at all or not work as well. First, if workers risked losing their health care any time they moved from one state to another, the labor force would become much less efficient and the nation’s economy would suffer. Some Republicans want to allow insurers to sell across state lines, but this would likely produce a “race to the bottom,” with states competing with one another for insurance business by weakening their regulations. Individual states don’t have the clout to force the kind of fundamental changes necessary to control costs. And many of them would be unable to fund coverage for all their citizens. (Massachusetts is something of an anomaly in this respect: it already had a lower-than-average uninsured population prior to its reform effort in 2006. Massachusetts also received funding for its reform program from the federal government, a fact rarely mentioned by Mitt Romney.) The federal government, on the other hand, can recoup costs by enhancing the efficiency of Medicare and Medicaid. In any case, the Affordable Care Act is not a sweeping federal takeover. Its implementation involves both federal and state agencies. The states, for example, will regulate the “exchanges” where those without an employer-based group plan will go to purchase health insurance.

Those who claim the Affordable Care Act is a violation of the principle of subsidiarity often single out the individual mandate as an especially egregious case of governmental overreach: once the state starts forcing people to buy things, they ask, where will it end? During oral arguments, the Supreme Court’s conservative justices signaled that they found this critique compelling. So, why does the individual mandate figure so prominently in the Affordable Care Act? The answer has to do with a provision in the law that prohibits insurance companies from denying coverage to those with “pre-existing conditions.” Without the individual mandate, a person could simply wait until he became ill to purchase insurance—and then cancel coverage when he got better. This would ruin the fundamental structure of health insurance, which relies on premium revenue from healthy patients (who are cheap to insure) to pay for sick patients. There is now broad agreement that it’s unacceptable for insurance companies to refuse to cover someone with a pre-existing condition, and the Affordable Care Act makes it illegal. But the insurance companies can afford to take all comers only if healthy people are also required to purchase insurance.

The individual mandate was supported by Republicans in the 1990s as an alternative to Bill Clinton’s proposed health-care reform. As governor of Massachusetts, Romney supported an individual mandate for that state’s health-care overhaul—and still says it’s an acceptable policy at the state level. In fact, most Republicans rejected the idea only after it surfaced in Democratic reform plans. Before that, it was part of an alternative to “socialized medicine.” Now it’s adduced as evidence of the president’s hidden agenda to turn the United States into Europe.

On the question of how much authority the federal government should have and how much should be reserved for state governments, the Constitution seems to square nicely with the principle of subsidiarity. In an article published last year in the Yale Law Journal Online, Professor Andrew Koppelman of Northwestern University noted that the Constitutional Convention of 1787 approved a resolution authorizing Congress to “legislate in all cases…to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” The framers then translated this language into the text that became Article I, Section 8 of the Constitution. By giving Congress enough power to solve problems the states couldn’t solve separately, the founding fathers broke with the earlier Articles of Confederation, which jealously guarded the sovereignty of the member states.

Of course, it is not inevitable that the Catholic tradition and American constitutional theory will align on all matters, but in this case they do. The Supreme Court will rule on the challenge to the Affordable Care Act by the end of June. A decision upholding the law will not convince most opponents of “Obamacare,” but it may go some way toward refuting the idea that the Constitution—or subsidiarity or any other principle of limited government—prevents the federal government from addressing important social problems that individual citizens and local governments cannot solve by themselves.


Related: In Defense of Politics, by the Editors

Published in the 2012-05-18 issue: 

David Golemboski is a doctoral student in the department of government at Georgetown University.

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