Introduction: Legal Solutions in Health Reform

The American public has increasingly identified health care as a key issue of concern. In order to address the multiple problems relating to the access and affordability of health care, President Obama and federal lawmakers across the political spectrum continue to call for major health reform. In any debate on health reform, a predictable set of complex policy, management, economic and legal issues is likely to be raised. Due to the diverse interests involved, these issues could lead to a series of high-stakes policy debates. Therefore, it is critical that advocates of reform strategies anticipate such issues in order to decrease the likelihood that legally resolvable questions become barriers to substantive health reform.

In an effort to frame and study legal challenges and solutions in advance of the heat of political debate, the O'Neill Institute for National and Global Health Law at Georgetown University and the Robert Wood Johnson Foundation have crafted the Legal Solutions in Health Reform project.

This project is undertaken with the optimistic view that all legal problems addressed are either soluble or avoidable. Rather than setting up roadblocks, this project is a constructive activity, attempting to pave the road toward improved health for the nation. Consequently, it does not attempt to create consensus solutions for the identified problems, nor is it an attempt to provide a unified field theory of how to provide health insurance in America. Furthermore, this project does not seek to choose among the currently competing proposals or make recommendations among them. Instead, it is a comprehensive project written to provide policy-makers, attorneys, and other key stakeholders with a concise analysis of the complex legal issues relating to health reform, and a clear articulation of the range of solutions available for resolving those questions.
This paper lays out the formulation of the project, explains why health reform is important, discusses the pertinent legal questions applicable to federal health reform, and reviews the three themes that surface throughout the identified legal challenges:

  • federalism and preemption;
  • jurisdiction; and
  • enforcement and remedies. 

After a discussion of the current state of health care in the United States, this introduction will cite brief examples and problems under each general theme. Additionally, it will point to some of the solutions and remedies discussed in detail in the papers.