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Abstract

There were two ways for the solicitor general of the United States to litigate the constitutional challenge to the Patient Protection and Affordable Care Act of 2010 brought by twenty-six states and the National Federation of Independent Business. One path, which the solicitor general pursued, was to cautiously navigate judicial precedents, claim the barest increment of new congressional authority, and give the Supreme Court as many hooks as possible on which to hang a favorable decision.

The road not traveled was to offer a full-throated defense of federal authority to comprehensively regulate the U.S. health care system, a multitrillion dollar commercial and social enterprise that represents the largest component of federal expenditure after national defense. The ACA has three cornerstones. First, make health insurance coverage as widespread as possible. Second, improve the quality and efficiency of health care delivery. Third, make individuals and communities healthier. The second and third pillars are sometimes overlooked because so much attention is paid to expanding coverage, but the hallmark of the ACA is that it combines major changes to health insurance, health care delivery, and health in a single piece of federal legislation.

The Obama administration's timidity echoes what is strikingly absent from the new law. Although the ACA represents the successful culmination of a decades-long struggle to universalize coverage, its structure and text never convey the intent that all Americans have a common stake in the health care system. This lack of shared national identity is the missing fourth pillar of the ACA.