The Changing Role of the Government in American Health Law.

Abstract

The role of the government in shaping health law and health care in the United States has evolved dramatically over the last sixty years. At some moments, including in its administration of Medicare and Medicaid as initially established, the government took on a market participant role and was responsible for financing care for beneficiaries. With this role came heightened regulatory reach over hospitals, doctors, and other healthcare industry participants. In other areas, including in its oversight of private insurance, the government has served as a regulator. Over the last several decades, however, these two conceptions of the role of the government have blurred. The role of the private sector in federal programs like Medicare and Medicaid has expanded, while simultaneously the government has increasingly financed and regulated private insurance, including through the Affordable Care Act. When this evolving role is understood in conjunction with political and legal shifts, including reduced judicial deference to administrative agencies and state-level preemption, it illuminates that the government's regulatory power may be constrained going forward. This article describes the evolution of healthcare financing and regulation, this evolution's consequences for health law in light of the larger legal context, and suggests what might lie ahead.