How the House bill's state waiver provision could backfire in a big way.
The U.S. Constitution is notable for its focus on proscriptions rather than prescriptions. Most of what this masterful charter does is guarantee freedom from government interference in individual liberties “rather than impose any affirmative obligation of the government to provide for the health or welfare of its citizens,” writes Erin C. Fuse Brown, an associate professor of law at Georgia State University's Center for Law Health and Society in a fascinating 2013 paper.
Contrary to what many might expect, for example, the Constitution does not explicitly require the federal government or the states to protect the health of citizens—and, in fact, does not mention the word “health” anywhere in its 4,543 words or in any of its amendments. In Brown's very readable law review article, she explains why—and cites another scholar, Puneet K. Sandhu, who sums up a few reasons why it would be challenging to affirm even if the framers had hoped to do so. “The problem of defining and implementing a right to health is threefold,” says Sandhu: “indeterminacy (how to characterize it), justiciability (how to enforce it), and progressive realization (how to raise the standard over time).”
