ABSTRACT
“The ACA is here to stay,” 1 President Obama stated in the wake of the 2015 Supreme Court decision King v. Burwell. 2 In the year that two of America’s most enduring social programs—Medicare and Medicaid—celebrated fifty years of existence and the presidential campaign for the next term started, the then still recent Patient Protection and Affordable Care Act (ACA) 3 aspired to become part of this panoply of long-lasting social reforms. 4 Indeed, part of the legacy of the ACA or of any significant legal reform is determined by its duration and how deeply it becomes entrenched in a legal order. 5 The entrenchment of this act would protect it partially against the winds of change and the promises of the Republican candidates to repeal this statute. Following King v. Burwell academic commentators discussed the U.S. conservatives’ fear that the ACA would become a ‘super-statute,’ that is, a statute with quasi-constitutional character that is broadly accepted by the people, is able to resist reform attempts, and judicial challenges. 6 As winds of change are expected during the Trump Administration, this qualification might appear to be premature and unrealistic at the time of writing. However, the difficulties in amending the ACA and the lack of consensus in Congress on how to reform this statute has revealed thus far the existence of informal entrenchment forces that are typically observed in the context of quasi-constitutional statutes.
