{"id":3386,"date":"2021-06-10T19:30:40","date_gmt":"2021-06-10T23:30:40","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=3386"},"modified":"2023-02-18T08:12:35","modified_gmt":"2023-02-18T13:12:35","slug":"reconceptualizing-congressional-decision-making-around-well-being-a-health-in-all-policies-approach","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2021\/06\/10\/reconceptualizing-congressional-decision-making-around-well-being-a-health-in-all-policies-approach\/","title":{"rendered":"Reconceptualizing Congressional Decision-making Around Well-being: A Health in All Policies Approach"},"content":{"rendered":"

Congressman TJ Cox, Dr. Kathy Murphy, & Rebecca Kahn<\/em><\/p>\n

I. INTRODUCTION<\/strong><\/p>\n

Protecting and promoting the public\u2019s health is one of the most important roles of government. The preamble of the United States Constitution states that our government\u2019s role is to \u201csecure the blessings of Liberty\u201d and \u201cinsure domestic Tranquility\u201d through the establishment of \u201cJustice,\u201d a \u201ccommon defense,\u201d and through the \u201cpromot[ion] of general Welfare\u201d for ourselves and future generations.1<\/a><\/sup> U.S. CONST. pmbl. <\/span> Article I of the Constitution establishes the legislative branch of the federal government\u2014the Congress\u2014which has the purpose of enacting laws in service of this preamble.2<\/a><\/sup> U.S. CONST. art. I.<\/span><\/p>\n

Unfortunately, public health or human well-being is not formally considered in the congressional lawmaking process, much less given primacy. Instead, a potential law\u2019s effect on the federal budget is the only scored consideration in the annual legislative budget process.3<\/a><\/sup> MEGAN S. LYNCH, CONG. RSCH. SERV., 98-721, INTRODUCTION TO THE FEDERAL BUDGET PROCESS 14\u201315 (2012).<\/span> Since the Congressional Budget and Impoundment Control Act of 1974, the requirement of a cost estimate in the form of a Congressional Budget Office (\u201cCBO\u201d) score for most legislative proposals has oriented the lawmaking process towards economic considerations, first and foremost.4<\/a><\/sup>Frequently Asked Questions About CBO Cost Estimates<\/em>, CONG. BUDGET OFF., https:\/\/www.cbo.gov\/about\/products\/ce-faq [https:\/\/perma.cc\/J6FD-MAEV].<\/span> While this is a critical function, as Robert Kennedy stated in 1968, \u201cthe gross national product does not allow for the health of our children . . . [it] measures everything in short, except that which makes life worthwhile.\u201d5<\/a><\/sup>Sen. Robert F. Kennedy, Remarks at the University of Kansas (Mar. 18, 1968), https:\/\/www.jfklibrary.org\/learn\/about-jfk\/the-kennedy-family\/robert-f-kennedy\/robert-f-kennedy-speeches\/remarks-at-the-university-of-kansas-march-18-1968 [https:\/\/perma.cc\/B2FV-9EJ2].<\/span><\/p>\n

<\/p>\n

Around the globe, governments are realizing that a sole focus on economic measures in the assessment of legislation is inadequate at best and harmful at worst. Economic factors and measures of productivity, consumption, and trade are metrics that the global market has long used to indicate the standing of a nation.6<\/a><\/sup> See<\/em> James Ellsmoor, New Zealand Ditches GDP for Happiness and Wellbeing<\/em>, FORBES (July 11, 2019), https:\/\/www.forbes.com\/sites\/jamesellsmoor\/2019\/07\/11\/new-zealand-ditches-gdp-for-happiness-and-wellbeing\/?sh=5e334efb1942 [https:\/\/perma.cc\/GL87-E3WP].<\/span> However, led by the World Health Organization (\u201cWHO\u201d), the international community is rethinking the central role of health in defining the prosperity or wealth of countries by re-orienting their budgets to match their values, especially as rebuilding begins after the global pandemic.7<\/a><\/sup>See Promoting Health in All Policies and Intersectoral Action Capacities<\/em>, WORLD HEALTH ORG., https:\/\/www.who.int\/activities\/promoting-health-in-all-policies-and-intersectoral-action-capacities [https:\/\/perma.cc\/FX9V-H8YP].<\/span><\/p>\n

WHO Director-General Dr. Tedros Adhanom Ghebreyesus recently stated that \u201cthe time has come for a new narrative that sees health not as a cost, but an investment that is the foundation of productive, resilient and stable economies.\u201d8<\/a><\/sup>WHO Establishes Council on the Economics of Health for All<\/em>, WORLD HEALTH ORG. (Nov. 13, 2020), https:\/\/www.who.int\/news\/item\/13-11-2020-who-establishes-council-on-the-economics-of-health-for-all [https:\/\/perma.cc\/2BRE-7FCS].<\/span> The WHO created a task force to outline how different countries can center health and equity in policymaking.9<\/a><\/sup>Chris Brown et al., Governance for Health Equity<\/em>, WORLD HEALTH ORG. (2014), https:\/\/www.euro.who.int\/__data\/assets\/pdf_file\/0020\/235712\/e96954.pdf [https:\/\/perma.cc\/6TWD-TAZT].<\/span> Speaking half a century after Robert Kennedy and echoing his call for well-being, Dr. Mariana Mazzucato, a prominent economist who chairs the WHO\u2019s new Council on the Economics of Health for All, stated that its agenda will be \u201cto shape our economies so they truly have well-being and inclusion at the centre of how we create value, measure it and distribute it.\u201d10<\/a><\/sup>WHO, supra<\/em> note 8.<\/span><\/p>\n

The Centers for Disease Control and Prevention (\u201cCDC\u201d) defines \u201csocial determinants of health\u201d as \u201cconditions in the places where people live, learn, work, and play that affect a wide range of health and quality-of life-risks and outcomes.\u201d11<\/a><\/sup>Social Determinants of Health: Know What Affects Health<\/em>, CTRS. FOR DISEASE CONTROL & PREVENTION (Mar. 9, 2021), https:\/\/www.cdc.gov\/socialdeterminants\/index.htm [https:\/\/perma.cc\/MAZ6-W3U8].<\/span>\u00a0The importance of considering social determinants of health in legislation is recognized by many legislators, but it is notable how few bills have been passed into law that consider these larger factors of well-being.12<\/a><\/sup>Legislative Search<\/em>, CONGRESS.GOV, http:\/\/www.congress.gov\u00a0 [https:\/\/perma.cc\/AF9C-XWEM] (search in search bar for \u201csocial determinants of health\u201d; on the left side of the page, under Limit Your Search check \u201cLegislation\u201d; under Congress check all from 110 through 117; under Bill Type check \u201cBills\u201d and \u201cResolutions\u201d).<\/span> The authors conducted a search in Congressional data records for bills that mention \u201csocial determinants of health,\u201d which displayed 148 federal bills introduced since 2007.13<\/a><\/sup>Id.<\/em><\/span> Of these 148 bills, only three bills (the Supporting Older Americans Act of 2020, the CARES Act, and the Consolidated Appropriations Act, 2021) passed out of the House and Senate and became public law.14<\/a><\/sup>Legislative Search<\/em>, CONGRESS.GOV, http:\/\/www.congress.gov [https:\/\/perma.cc\/F9F3-3T8E] (search in search bar for \u201csocial determinants of health\u201d; on the left side of the page, under Limit Your Search check \u201cLegislation\u201d; under Congress check all from 110 through 117; under Bill Type check \u201cBills\u201d and \u201cResolutions\u201d; under Status of Legislation, check \u201cBecame Law\u201d).\u00a0\u00a0<\/span> Although an imperfect proxy, a mere two percent passage rate indicates the potential utility of an enhanced congressional focus on health and well-being.<\/p>\n

As the United States contemplates investments in human well-being, it can emulate the global health community\u2019s prioritization of health equity in governance. The Biden administration has already taken important steps towards this goal with its establishment of a COVID-19 Health Equity Task Force and its commitment to establish an Office of Climate Change and Health Equity in the Office of the Secretary of Health and Human Services.15<\/a><\/sup>See<\/em> Exec. Order No. 13,995, 86 Fed. Reg. 7193, 7193 (Jan. 21, 2021); Exec. Order No. 14,008, 86 Fed Reg. 7619, 7631 (Feb. 1, 2021).<\/span><\/p>\n

At present, the United States Congress fails to adequately account for the downstream societal benefits of better population health in its legislation. The recent debate over the fifteen dollar minimum wage, which was taken out of the final American Rescue Plan,16<\/a><\/sup>See<\/em> Barbara Sprunt, Here\u2019s What\u2019s in the American Rescue Plan<\/em>, NPR (Mar. 11, 2021), https:\/\/www.npr.org\/sections\/coronavirus-live-updates\/2021\/03\/09\/974841565\/heres-whats-in-the-american-rescue-plan-as-it-heads-toward-final-passage [https:\/\/perma.cc\/VDX2-67N7].<\/span>\u00a0highlights this disconnect: the costs of a wage increase were more salient to lawmakers than downstream societal benefits.17<\/a><\/sup>See<\/em> Niv Elis, New CBO Report Fuels Fight Over $15 Minimum Wage<\/em>, HILL (Jul. 8, 2019), https:\/\/thehill.com\/policy\/finance\/452016-15-minimum-wage-would-boost-pay-for-17m-but-threaten-over-1m-jobs-study [https:\/\/perma.cc\/BG2Y-96M4].<\/span><\/p>\n

The CBO\u2019s report on the Raise the Wage Act of 2021 concludes: \u201cThe cumulative budget deficit over the 2021\u20132031 period would increase by $54 billion.\u201d18<\/a><\/sup>CONG. BUDGET OFF., THE BUDGETARY EFFECTS OF THE RAISE THE WAGE ACT OF 2021 1 (2021), https:\/\/www.cbo.gov\/system\/files\/2021-02\/56975-Minimum-Wage.pdf [https:\/\/perma.cc\/93GQ-52G6].\u00a0\u00a0<\/span> As a secondary note, the CBO stated: \u201cThe number of people in poverty would be reduced by 0.9 million.\u201d19<\/a><\/sup>Id.<\/em> at 2.<\/span>\u00a0However, the benefits in health and economic well-being for these 900,000 people lifted out of poverty was not measured, scored, or given weight in the report.<\/p>\n

A multidisciplinary evaluation of the Raise the Wage Act of 2021 could have captured the downstream benefits of increased wages, not only for workers\u2019 health or well-being, but also the overall national effects of further economic consumption.<\/p>\n

Considering legislation in budgetary terms alone limits our ability to provide for longer-term societal growth.20<\/a><\/sup>See generally<\/em> KEN JACOBS ET AL., UC BERKELEY LAB. CTR., THE PUBLIC COST OF A LOW FEDERAL MINIMUM WAGE (2021), https:\/\/laborcenter.berkeley.edu\/wp-content\/uploads\/2021\/01\/The-Public-Cost-of-a-Low-Federal-Minimum-Wage.pdf [https:\/\/perma.cc\/7KQW-UFPN].<\/span>\u00a0It is time for a change.<\/p>\n

The first half of this article will explore the history of cost-scoring and the path dependencies that led us to the present day. The second half will lay out a comprehensive vision of the reforms needed to ensure the long-term health and well-being of the American people. We will outline a way to reorient the federal legislative process towards human well-being through the creation of a congressionally-chartered office\u2014a Congressional Health Office (\u201cCHO\u201d)\u2014focused on incorporating social determinants of health, health equity, and population health, in order to fairly evaluate and prioritize laws that promote well-being. Similar to the CBO, the CHO would evaluate and score legislation with a \u201chealth\u201d or \u201cwell-being\u201d grade.<\/p>\n

II. THE LANDSCAPE: EXISTING PROBLEMS AND INNOVATIVE SOLUTIONS<\/strong><\/p>\n

Policy plays a central role in shaping our individual and collective opportunities for health. Many of our non-health laws have unintended, health-related consequences. Thus, social determinants of health are largely shaped by public policies.<\/p>\n

The global pandemic has exacerbated and highlighted existing health inequities in our society.21<\/a><\/sup>ELIZABETH CAMERON ET AL., GLOBAL HEALTH SEC. INDEX (Oct. 2019), https:\/\/www.ghsindex.org\/wp-content\/uploads\/2019\/10\/2019-Global-Health-Security-Index.pdf [https:\/\/perma.cc\/CP3X-YHAM].<\/span> Notably, the United States stands out as an outlier for poor performance among the nations deemed best equipped to handle such a crisis.22<\/a><\/sup>See<\/em> Martha Lincoln, Study the Role of Hubris in Nations\u2019 COVID-19 Response<\/em>, NATURE (Sept. 15, 2020), https:\/\/www.nature.com\/articles\/d41586-020-02596-8 [https:\/\/perma.cc\/59R8-BBE7].\u00a0\u00a0\u00a0\u00a0<\/span>\u00a0Over the first half of 2020, life expectancy in the United States declined by a staggering 1.13 years with a disproportionate impact on minority communities.23<\/a><\/sup>Theresa Andrasfay & Noreen Goldman, Reductions in 2020 US Life Expectancy due to COVID-19 and the Disproportionate Impact on the Black and Latino Populations<\/em>, 118 PROC. NAT’L ACAD. SCIS. e2014746118, at 1 (2021).<\/span> Black Americans have suffered a decline of life expectancy of 2.1 years and Latino Americans a decline of 3.05 years that are three to four times as large as the reduction for white Americans (0.68 years).24<\/a><\/sup>Id.<\/em> at 3.<\/span>\u00a0Life expectancy is just one of many metrics that displays the health inequities present in our society.<\/p>\n

This is an economic, moral, and ethical tragedy. A thriving society depends on the well-being of all its citizens. As recognized by the Obama Administration and by many lawmakers, we can improve the state of health and equity in our country by adopting a spirit of \u201chealth in all policies\u201d (\u201cHiAP\u201d) in all legislation.25<\/a><\/sup>Amy T. Campbell, What Hope for Health in All Policies\u2019 Addition and Multiplication of Equity in an Age of Subtraction and Division at the Federal Level?<\/em>, 12 ST. LOUIS U. J. HEALTH POL’Y 59, 71 (2018).<\/span>\u00a0The CDC defines \u201chealth in all policies\u201d as \u201ca collaborative approach that integrates and articulates health considerations into policymaking across sectors to improve the health of all communities and people.\u201d26<\/a><\/sup>Health in All Policies<\/em>, CTRS. FOR DISEASE CONTROL & PREVENTION (June 9, 2016), https:\/\/www.cdc.gov\/policy\/hiap\/index.html [https:\/\/perma.cc\/PRJ8-FJ78].<\/span> Today, more tools are at hand to measure and evaluate population health, including Health Impact Assessments (\u201cHIAs\u201d) and economic evaluations (like cost-benefit and cost-effectiveness analysis),27<\/a><\/sup>See generally<\/em> Ross C. Brownson et al., Evidence-Based Public Health: A Fundamental Concept for Public Health Practice, 30 ANN. REV. PUB. HEALTH 175 (2009).<\/span>\u00a0racial equity assessments,28<\/a><\/sup>See<\/em> Nathan T. Chomilo, Building Racial Equity Into The Walls of Health Policy<\/em>, HEALTH AFFS. BLOG (Dec. 1, 2020), https:\/\/www.healthaffairs.org\/do\/10.1377\/hblog20201119.508776\/full\/ [https:\/\/perma.cc\/72TH-G8G8].<\/span> and health impact reviews.29<\/a><\/sup>See<\/em> Keshia M. Pollack Porter et al., Considering Health and Health Disparities During State Policy Formulation: Examining Washington State Health Impact Reviews<\/em>, 19 BMC PUB. HEALTH 862, 863 (2019).<\/span><\/p>\n

There are numerous examples where a health-in-all-policies approach helped improve outcomes.30<\/a><\/sup>Id.<\/em><\/span>HIAs are used by other countries, states, banks, and major industries such as oil, gas, and mining to improve health, control costs, and build trust.31<\/a><\/sup>PEW, HEALTH IMPACT ASSESSMENT (2010) https:\/\/www.pewtrusts.org\/en\/~\/media\/ Assets\/External-Sites\/Health-Impact-Project\/healthimpactassessmentbringingpublichealthdatatodecisionmaking.pdf [https:\/\/perma.cc\/J56X-QZEP].<\/span> These assessments address health risks and benefits of public policy decisions made outside the health sector, tapping into knowledge about social determinants.32<\/a><\/sup>PEW, DO HEALTH IMPACT ASSESSMENTS HELP PROMOTE EQUITY OVER THE LONG TERM?\u00a026 (2020), https:\/\/www.pewtrusts.org\/-\/media\/assets\/2020\/10\/do_health_impact_assessments_report_v3b.pdf [https:\/\/perma.cc\/N29Y-MX8W].<\/span> They bring together public health expertise, scientific data, and community input.33<\/a><\/sup>See supra<\/em> note 32.<\/span><\/p>\n

At the state level, various legislative bodies have used HIAs, driven by a formalized process.34<\/a><\/sup>PEW, HEALTH IMPACT ASSESSMENTS LEGISLATION IN THE STATES 2 (2015) https:\/\/www.pewtrusts.org\/en\/research-and-analysis\/issue-briefs\/2015\/02\/health-impact-assessment-legislation-in-the-states [https:\/\/perma.cc\/V68M-NBM3].<\/span> In some cases, this formalized process has been authorized or required in state statute.35<\/a><\/sup>Id.<\/em> at 5.<\/span> Washington State, for example, has authorized health impact reviews (\u201cHIRs\u201d), a model which the federal legislature could follow.36<\/a><\/sup>WASH. REV. CODE \u00a7 43.20.275 (2006). <\/span> In 2019, a study conducted by Dr. Pollack Porter at Johns Hopkins regarding Washington\u2019s Health Impact Reviews concluded:<\/p>\n

HIRs are one strategy to advance HiAP for state policy decisions. HIRs are a potentially effective tool for highlighting how legislative proposals and budgets positively and negatively impact health and health disparities. Future efforts should promote awareness and highlight shared benefits of HIRs among legislators and their staff, as well as their scientific integrity, methodological rigor, and objectivity.37<\/a><\/sup>See<\/em> Pollack Porter & McInnis-Simoncelli, supra<\/em> note 30, at 862.<\/span><\/p>\n

Meanwhile, at the federal level, the use of HIAs has sometimes been in the context of implementing the National Environmental Policy Act (\u201cNEPA\u201d), which requires federal agencies to evaluate the health effects of proposed federal actions.38<\/a><\/sup>Christina S. Ho, Legislating a Negative Right to Health: Health Impact Assessments<\/em>, 50 SETON HALL L. REV. 643, 658\u201359 (2019).<\/span><\/p>\n

In 2011, the National Research Council\u2014an arm of the National Academies of Sciences, Engineering, and Medicine (\u201cNASEM\u201d)\u2014published a report aimed at developing \u201ca framework, terminology, and guidance for conducting health impact assessment (HIA) of proposed policies, programs, and projects (for example, transportation, land use, housing, agriculture) at federal, state, tribal, and local levels, including the private sector\u201d and assessing \u201cthe value and potential value of such assessments; the impediments and countervailing factors that have limited the practice of HIA to date; the circumstances and criteria for conducting them; the concepts, tools, and information required; and the types, structure, and content of HIAs.\u201d39<\/a><\/sup>A Framework and Guidance for Health Impact Assessment<\/em>, NAT\u2019L ACADS. https:\/\/www.nationalacademies.org\/our-work\/a-framework-and-guidance-for-health-impact-assessment [https:\/\/perma.cc\/VZ9F-TDV6 ].<\/span>\u00a0They concluded that \u201c[t]he use of HIA should be focused on applications in which there is the greatest opportunity to protect or promote health and to raise awareness of the health consequences of proposed decisions.\u201d40<\/a><\/sup>NAT\u2019L RSCH. COUNCIL, IMPROVING HEALTH IN THE UNITED STATES: THE ROLE OF HEALTH IMPACT ASSESSMENT 112 (2011).<\/span><\/p>\n

One challenge that has impeded the broad utilization of HIAs is the diversity of evidence sources. The Academies listed three strategies to improve the validity of these health-effects predictions, including considering multidisciplinary expertise and assessing where it is possible to use quantitative estimates of health effects \u201cgiven the sparseness of quantitative data on associations between many policy decisions and health.\u201d41<\/a><\/sup>Id. at 112\u201313.<\/span><\/p>\n

Since the NASEM report in 2011, there had been no Congressional action regarding HIAs until 2020. On July 9, 2020, Congressman TJ Cox (D-Cal.) introduced H.R. 7510, the Assimilating Health and Equity Assessments into Decision-making (\u201cAHEAD\u201d) Act of 2020, with original cosponsors including David J. Trone (D-Md.), Terri A. Sewell (D-Ala.), Katie Porter (D-Cal.), Eliot L. Engel (D-N.Y.), and Julia Brownley (D-Cal.).42<\/a><\/sup>Assimilating Health and Equity Assessments into Decision-making (AHEAD) Act, H.R. 7510, 116th Cong. (2020).<\/span><\/a> A companion, S.4919, was introduced on November 18, 2020 in the Senate by Senator Ben Cardin (D-Md.) and Senators Michael Bennet (D-Colo.), Sherrod Brown (D-Ohio), Tina Smith (D-Minn.), Catherine Cortez Masto (D-Nev.), Cory Booker (D-N.J.) and Tammy Duckworth (D-Ill.).43<\/a><\/sup>Assimilating Health and Equity Assessments into Decision-making (AHEAD) Act, S. 4919, 116th Cong. (2020).<\/span>\u00a0This bill would direct HHS to commission NASEM to study the use of tools, such as Health Impact Assessments, that assess a policy\u2019s impact on population health and well-being.44<\/a><\/sup>See<\/em> H.R. 7510 \u00a7 2(b); S. 4919 \u00a7 2(b).<\/span><\/p>\n

Language from the bill was included in the FY 2021 Labor, Health and Human Services, Education, and Related Agencies (\u201cLHHS\u201d) House Appropriations package and passed into law due to the inclusion of the LHHS Appropriations report in the end-of-year coronavirus omnibus.45<\/a><\/sup>H.R. REP. NO. 116-450, at 209 (2021).<\/span> Specifically, the report included the following language:<\/p>\n

The Committee believes there is an opportunity to use health impact assessments and other related approaches in the federal government to raise awareness of the potential health consequences of proposed policies outside the health domain. The Committee strongly encourages the Department to study the benefits of incorporating assessments of health effects into the federal policymaking process with the intention to solve fundamental challenges of population health by better addressing the full range of factors that influence overall health and well-being (e.g., education, safe environments, housing, transportation, economic development, access to healthy foods).46<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The Biden Administration has also taken actions that signal alignment with a community-engaged and evidence-based federal health-in-all-policies approach.47<\/a><\/sup>See, e.g.<\/em>, Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 2021 DAILY COMP. PRES. DOC. 4\u20135 (Jan. 27, 2021).<\/span><\/p>\n

III. THE CREATION OF A CONGRESSIONAL HEALTH OFFICE AS A PARALLEL TO THE CBO<\/strong><\/p>\n

To accommodate the nation\u2019s changing understanding of the importance of addressing well-being, we propose the creation of a Congressional Health Office (\u201cCHO\u201d). Similar to the Congressional Budget Office (\u201cCBO\u201d) the CHO would be a nonpartisan agency, composed of interdisciplinary experts, that would develop new analytical tools to measure health and to provide the Congress with much-needed institutional expertise. The CHO would dynamically analyze health and well-being data collected by think tanks, academic organizations, the government\u2019s agencies, and private organizations in order to generate outputs to measure legislation.<\/p>\n

Rooted at the intersection of public health and social sciences, the CHO could employ philosophers, bioethicists, legal scholars, economists, and others. A number of tools that would help facilitate the CHO\u2019s work are already being utilized in the private and public spheres. For instance, big data scientists already have the ability to map social determinants of health specific to geographic locations.48<\/a><\/sup>See<\/em> Sandro Galea et al., Social Determinants of Health, Data Science, and Decision-Making: Forging a Transdisciplinary Synthesis<\/em>, 17 PLOS MED. 1, 1 (2020). <\/span> Systems scientists could use this data to simulate proposed policies in specific locations to simulate how a program would likely work in a real environment based on the data already available.49<\/a><\/sup>See id.<\/em> at 1\u20132.<\/span><\/p>\n

As Jeffrey Sachs and his co-authors write in Six Transformations to <\/em>Achieve the Sustainable Development Goals<\/em>,<\/p>\n

New ways for decision-making to engage social movements\u2014such as those around decarbonization\u2014are crucial. When policy challenges are complex, politically charged and have a long time-horizon, countries may establish an independent agency or commission to bring about long-term systems change, subject to general democratic scrutiny by elected officials.50<\/a><\/sup>Jeffrey D. Sachs et al., Six Transformations to Achieve the Sustainable Development Goals<\/em>, 2 NATURE SUSTAINABILITY 805, 812 (2019).<\/span><\/p>\n

This agency is a novel approach to congressional legislating. It centers health equity at its core, well-being as its goal, and objective policy evaluation as its mission.<\/p>\n

The CHO would be an independent institution comparable to the CBO. The history of the CBO\u2019s creation and its impact on lawmaking provides a rationale and template for a CHO. As stated by Alice Rivlin, founding director of the CBO, \u201cDemocracies need politicians dedicated to a variety of different policies and eager to argue their point of view. But elected leaders also need reality checks\u2014competent neutral evaluators of the competing policy claims.\u201d51<\/a><\/sup>Alice Rivlin, former Vice Chair of the Fed. Reserve, Dir. Of the White House Office of Mgmt. and Budget, and founding Dir. of Cong. Budget Office, Keynote Address at the 9th Annual Meeting of OECD Parliamentary Budget Officials and Independent Fiscal Institutions: Coping with Change at an Independent Fiscal Institution (Apr. 6, 2017) https:\/\/www.brookings.edu\/on-the-record\/coping-with-change-at-an-independent-fiscal-institution\/ [https:\/\/perma.cc\/P3YN-K9H9]. <\/span> The CBO provides a quantitative metric for policymaking, while the CHO would provide a qualitative score.<\/p>\n

From the ratification of the Constitution through World War I, executive branch departments submitted annual budget requests to the Congress.52<\/a><\/sup>Hist., Art & Archives U.S. House of Reps., Origins & Development: From the Constitution to the Modern House\u2014Power of the Purse, https:\/\/history.house.gov\/Institution\/Origins-Development\/Power-of-the-Purse\/ [https:\/\/perma.cc\/YW9E-WJXW].<\/span> However, World War I generated substantial growth in the Federal budget and resulted in a need to gain better control of the budget process.53<\/a><\/sup>CONG. BUDGET OFF., HIST. (2020), https:\/\/www.cbo.gov\/about\/history [https:\/\/perma.cc\/L752-RGF9].<\/span> This led to the Budget and Accounting Act of 1921, which required the President to develop and submit an annual budget request and oversee the disbursement of appropriated funds.54<\/a><\/sup>Id.<\/em><\/span> The law also created the Bureau of the Budget that, in 1971, was renamed the Office of Management and Budget.55<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The 1921 Budget Act concentrated power in the hands of the Presidency by allowing the President to control the budget of departments.56<\/a><\/sup>Id.<\/em><\/span> Over the next fifty years, tension grew between the Executive Branch and Congress, which found itself at an institutional disadvantage\u2014unable to set priorities, coordinate spending and revenue bills, or develop economic reports independently of the President.57<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In 1973 and 1974, President Nixon refused to disburse twelve billion dollars of congressionally-appropriated funds.58<\/a><\/sup>BANCROFT LIBRARY, 1974 Congressional Budget and Impoundment Control Act (2011), https:\/\/bancroft.berkeley.edu\/ROHO\/projects\/debt\/budgetcontrolact.html [https:\/\/perma.cc\/6RSJ-58FN].<\/span> In the context of this overreach and concerns over the deficit, Congress made an effort to reclaim its power of the purse by passing the Congressional Budget and Impoundment Control Act in 1974 (the \u201cBudget Act of 1974\u201d) to take power over the federal budget back from the president.59<\/a><\/sup>FIRST BRANCH FORECAST, CONGRESS\u2019S POWER OF THE PURSE (Aug. 27, 2020), https:\/\/firstbranchforecast.com\/2020\/08\/27\/congress-power-of-the-purse\/ [https:\/\/perma.cc\/CRM4-M846].<\/span><\/p>\n

The Budget Act of 1974 established the CBO to address fiscal irresponsibility and political manipulation of proposed legislation.60<\/a><\/sup>See<\/em> Robert P. Saldin, Gaming the Congressional Budget Office<\/em>, NAT\u2019L AFFS. (2014), https:\/\/www.nationalaffairs.com\/publications\/detail\/gaming-the-congressional-budget-office [https:\/\/perma.cc\/E3M5-TLMN]. <\/span> The CBO\u2019s mission is to help Congress make more effective budget and economic policy. This mission is, by its charter, as narrow as possible.61<\/a><\/sup>See<\/em> CONG. BUDGET OFF., 10 THINGS TO KNOW ABOUT CBO (Jan. 4, 2021), https:\/\/www.cbo.gov\/about\/10-things-to-know\/ [https:\/\/perma.cc\/RQC7-VH33].<\/span> Further, the CBO must produce high-quality analyses with limited resources.62<\/a><\/sup>Id.<\/em><\/span> However, even the most impressive microsimulation, macroeconomic, and regression models cannot capture the full scope of a legislative proposal\u2019s budgetary effects\u2014let alone its non-economic, health-related effects.<\/p>\n

The CBO recognizes this limitation. In 2020, the CBO issued a report regarding the process by which they score preventive medical care and found that roughly \u201c80 percent of preventive medical services have been found to lead to higher health care spending overall\u201d and proposed legislation \u201cincreased federal budget deficits in many cases.\u201d63<\/a><\/sup>CONG. BUDGET OFF., HOW CBO ANALYZES APPROACHES TO IMPROVE HEALTH THROUGH DISEASE PREVENTION (2020), https:\/\/www.cbo.gov\/publication\/56345 [https:\/\/perma.cc\/SJL2-R3ZU].<\/span>\u00a0The report also noted that services can \u201cprevent diseases from occurring and . . . detect the presence of a disease before symptoms appear,\u201d and \u201c[e]xpanded government support for preventive care can improve people\u2019s health, and for that reason it might be considered worthwhile even if it increased federal budget deficits in many cases.\u201d64<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The CBO\u2019s health economists caution that \u201cthe effects on the federal budget and on people\u2019s health are just two of many possible factors that policymakers may weigh in considering proposals to expand the use of preventive medical services.\u201d65<\/a><\/sup>Id.<\/em><\/span>\u00a0Here, the CBO itself calls for the consideration of people\u2019s health. While the CBO measures effects on the federal budget, there is currently no formal process to measure effects on our citizens\u2019 health.<\/p>\n

A Congressional Health Office focused on population health would supplement the CBO\u2019s work. It would direct public health scientists to evaluate the potential health impact of a given policy, just as the Congressional Budget Office tasks economists to evaluate a bill\u2019s fiscal impact. As stated above, this health office would recognize that the investments we make upstream in education, safe environments, housing, economic development, and access to healthy foods all have important economic and health implications. In fact, the factors of health behaviors, social and economic factors, and physical environment comprise approximately eighty percent of one\u2019s opportunity to live a healthy, productive life.66<\/a><\/sup>Jessica Kent, How the Social Determinants of Health Impact Population Wellness<\/em>, HEALTH IT ANALYTICS (Jan. 2, 2018), https:\/\/healthitanalytics.com\/news\/how-the-social-determinants-of-health-impact-population-wellness [https:\/\/perma.cc\/5FRA-YNCN].<\/span><\/a> It is critical to measure and incorporate these social determinants of health into the evaluation of legislation.67<\/a><\/sup>See<\/em> Barry M. Popkin et al., Measuring the Full Economic Costs of Diet, Physical Activity and Obesity-Related Chronic Diseases<\/em>, 7 OBESITY REV., 271\u2013293 (2006).<\/span>\u00a0Similar to the Congressional Research Service, the CHO could be tasked with providing individual district-level analyses for legislators, since county and regional health varies.68<\/a><\/sup>See<\/em> County Health Rankings Model<\/em>, CNTY. HEALTH RANKINGS & ROADMAPS (2021), https:\/\/www.countyhealthrankings.org\/explore-health-rankings\/measures-data-sources\/county-health-rankings-model [https:\/\/perma.cc\/7QV6-6ESH].<\/span> In sum, the goal of this proposed office would be to optimize overall population health and rectify health disparities prevalent among marginalized groups.<\/p>\n

Using the CBO as a template, the CHO could be formed and adapted as necessary to meet the needs for population health and well-being evaluation and information. Notably, the consideration of policy with regard to its impact on the federal budget\u2014the field of budgetary economics\u2014was not previously a discipline unto itself prior to the creation of the CBO.69<\/a><\/sup>Kathleen Murphy & Keshia M. Pollack Porter, Time for a Second Public Health Revolution: A Congressional Health Office to Score Federal Legislation<\/em>, HEALTH AFFS. (Sept. 22, 2020), https:\/\/www.healthaffairs.org\/do\/10.1377\/hblog20200915.68239\/full\/ [https:\/\/perma.cc\/Z5ZV-U2F2].<\/span> In a similar manner, the CHO may create a new multidisciplinary field with aforementioned professional domains (and likely others) oriented to mission-driven policymaking.70<\/a><\/sup>Id.<\/em><\/span><\/p>\n

In order to promote laws that improve population health and to enhance the CBO\u2019s scoring function, the CBO\u2019s cost-estimating function (\u201cCBO score\u201d) could complement a CHO\u2019s corollary health-estimating function (\u201cCHO score\u201d). Today, the CBO has a 10-year window for its budgetary evaluation.71<\/a><\/sup>CONG. BUDGET OFF., supra note 63.<\/span> If a CHO score were processed with a longer-term, variable window, this could inform the CBO\u2019s economic analysis of the law\u2019s impact. Attempting to manipulate CBO scoring windows and assumptions has long been a tool used to skew the score to a given stakeholder\u2019s advantage.72<\/a><\/sup>See, e.g.<\/em>, Alexander Bolton, Sessions: Ten-Year Scoring of Senate Immigration Reform Bill Inadequate<\/em>, HILL (May 30, 2013), https:\/\/thehill.com\/homenews\/senate\/302613-sessions-tells-cbo-to-calculate-immigration-costs-beyond-10-year-budget-window [https:\/\/perma.cc\/WE69-GSTV].<\/span> Empowering the CHO would not only relieve pressure on the CBO, but could enable more accurate, evidence-based economic analysis that could cover longer time frames and more accurately predict secondary effects of the legislation.<\/p>\n

IV. HEALTH INEQUITIES: A CASE STUDY<\/strong><\/p>\n

A CHO analysis could pinpoint the root causes of health inequities, facilitating the creation of targeted policies to rectify them.\u00a0We outline below an example of how the Farm Bill exacerbated health inequities, how a health score could have ameliorated these inequities, and how a CHO would prevent them altogether.<\/p>\n

An examination of the Farm Bill, which governs the agricultural and food marketplace across the nation, illustrates how merely considering a policy\u2019s economic impacts results in substandard public policy.73<\/a><\/sup>Agriculture Improvement Act of 2018, H.R.2, 115th Cong. (2018).<\/span> This large, multi-pronged bill is renewed and revised every five or six years.74<\/a><\/sup>See<\/em> RENEE JOHNSON & JIM MONKE, CONG. RSCH. SERV., RS22131, WHAT IS THE FARM BILL? 1 (2019).<\/span> In order to mitigate widespread hunger during the 1930s, the bill included a commodity subsidy that was initially meant to incentivize farmers to plant staple crops of Americans\u2019 diets.75<\/a><\/sup>See <\/em>Mark Muller et al., Considering the Contribution of U.S. Food and Agricultural Policy to the Obesity Epidemic: Overview and Opportunities<\/em>, 4 J. HUNGER & ENV\u2019T. NUTRITION 3, 15 (2009).<\/span> Today, commodity crops supply the main ingredients for processed foods, including high-fructose corn syrup, which has become a widely used sweetener in soda and other processed foods consumed in the US, as well as a contributor to obesity.76<\/a><\/sup>See<\/em> Caroline Franck et al., Agricultural Subsidies and the American Obesity Epidemic<\/em>, 45 AM. J. PREVENTIVE MED. 327, 328 (2013).<\/span><\/p>\n

Agricultural subsidies provide an important safety net to farmers operating in unpredictable markets.77<\/a><\/sup>See<\/em> JOHNSON & MONKE, supra<\/em> note 74, at 6.<\/span> However, the enduring subsidy of these crops incentivizes their production over fruits and vegetables.78<\/a><\/sup>Tamar Haspel, Farm Bill: Why Don\u2019t Taxpayers Subsidize the Foods that are Better for Us?<\/em>, WASH. POST (Feb. 18, 2014) https:\/\/www.washingtonpost.com\/lifestyle\/food\/farm-bill-why-dont-taxpayers-subsidize-the-foods-that-are-better-for-us\/2014\/02\/14\/d7642a3c-9434-11e3-84e1-27626c5ef5fb_story.html [https:\/\/perma.cc\/D3J5-WL63].<\/span> Moreover, a provision of the bill prevents farmers who receive a commodity subsidy from growing fruits and vegetables.79<\/a><\/sup>David Wallinga, Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary<\/em>, 29 HEALTH AFFS. 405, 407 (2010).<\/span> At the expense of promoting healthy American diets, today\u2019s price support programs incentivize the overproduction of commodity crops.80<\/a><\/sup>See<\/em> Franck, supra<\/em> note 76, at 332.<\/span> In fact, they have directly contributed to the obesity epidemic, disproportionately impacting underserved and minority communities, where fresh, affordable, healthy foods are not widely available.81<\/a><\/sup>See<\/em> Angela Hilmers et al., Neighborhood Disparities in Access to Healthy Foods and Their Effects on Environmental Justice<\/em>, 102 AM. J. PUB. HEALTH 1644, 1644 (2012); see also<\/em> Caroline Franck et al., Agricultural Subsidies and the American Obesity Epidemic<\/em>, 45 AM. J. PREVENTATIVE MED. 327, 329 (2013) (discussing how changes in policy like the Farm Bill could help combat obesity).<\/span> Paradoxically, the Department of Agriculture promotes a diet based on high consumption of fruits and vegetables while subsidizing the opposite.82<\/a><\/sup>Dietary Guidelines for Americans 2020-2025<\/em>, DHS (Dec. 2020) https:\/\/www.dietaryguidelines.gov\/sites\/default\/files\/2021-03\/Dietary_Guidelines_for_Americans-2020-2025.pdf [https:\/\/perma.cc\/F7TF-XWS7].<\/span><\/p>\n

Some of the leading causes of death in America are obesity-related chronic illnesses: heart disease, cancer, and stroke.83<\/a><\/sup>See<\/em> Nat\u2019l Ctr. for Health Stat., Leading Causes of Death<\/em>, CTRS. FOR DISEASE CONTROL & PREVENTION (2019), https:\/\/www.cdc.gov\/nchs\/fastats\/leading-causes-of-death.html [https:\/\/perma.cc\/6788-YWFY]; see also<\/em> Luma Akil & H. Anwar Ahmad, Relationships between Obesity and Cardiovascular Diseases in Four Southern States and Colorado<\/em>, 22 J. HEALTH CARE POOR UNDERSERVED 61, 61 (2011).<\/span> The costs of obesity are carried not just by individuals, but also by federal programs (such as Medicaid and Medicare) that support their care.84<\/a><\/sup>See<\/em> Y. Claire Wang et al., Severe Obesity in Adults Cost State Medicaid Programs $8 Billion in 2013<\/em>, 34 HEALTH AFFS. 1923, 1923 (2015); see also<\/em> Stop Obesity Alliance, Fast Facts: The Cost of Obesity, G.W. UNIV. https:\/\/stop.publichealth.gwu.edu\/sites\/stop.publichealth.gwu.edu\/files\/documents\/Fast%20Facts%20Cost%20of%20Obesity.pdf [https:\/\/perma.cc\/34R2-E9L9].<\/span> When the last Farm Bill was renewed, the CBO score incorporated only the direct cost of commodity-crop subsidies, not the indirect cost of promoting junk food over nutritious food.85<\/a><\/sup>See<\/em> JOHNSON & MONKE, supra<\/em> note 74, at 4.<\/span> Today, the commodity subsidy arguably causes harm and costs taxpayers in the long run, yet it persists due to the misalignment between our values and our tools for measuring legislation.<\/p>\n

In a review of United States agricultural policy and its impact on the American obesity epidemic, Franck, et al. aptly note that \u201c[t]he business of food is the most ubiquitous and powerful industry in the world, dominated by influential stakeholders and interest groups. Public health officials have had little say in shaping the American food system.\u201d86<\/a><\/sup>See<\/em> Franck, supra<\/em> note 76, at 332.<\/span> The authors make the salient point that \u201cpublic health interventions will remain limited in their impact until they can inform decisions that are made at every level of the American food chain, from growers to consumers.\u201d87<\/a><\/sup>Id.<\/em><\/span><\/p>\n

An office mandated to analyze legislative externalities impacting overall population health would provide the data and analyses to directly inform these decisions. A CHO analysis and scoring of a future Farm Bill would take into account policies\u2019 indirect effects, such as the costs of obesity, and could report on the opportunity costs of limiting nutritious food availability. The CHO could be further tasked with the evaluation of hypothetical Farm Bill amendments that would result in positive health impacts. For example, an evaluation of a fruit and vegetable subsidy amendment would help policymakers gauge the returns of incentivizing the integration of healthier foods on personal and societal health.<\/p>\n

A CHO could bring together a range of agricultural economists, public health officials, climate scientists, elected officials, and others for the task of providing a baseline score for existing U.S. agricultural policy and an assessment of policy options with accompanying scores for a future Farm Bill that realigns our policies to produce healthier citizens and communities.<\/p>\n

V. CONCLUSION<\/strong><\/p>\n

The duty of the federal government to protect and promote the public\u2019s health and well-being underpins the argument proposed here for compulsory, structured policy evaluations on health impact.<\/p>\n

In a growing movement, the notion of health as a fundamental legal right is being argued in both the political and legal communities.88<\/a><\/sup>Dr. Tedros Adhanom Ghebreyesus, Health is a fundamental human right<\/em>, WORLD HEALTH ORG. (Dec. 10, 2017) https:\/\/www.who.int\/news-room\/commentaries\/detail\/health-is-a-fundamental-human-right [https:\/\/perma.cc\/74DZ-6SBG].<\/span> Rutgers law professor Christina Ho recently advocated and provided the legal rationale for mandating HIAs as a way to ensure federal legislation would not negatively impact human health.89<\/a><\/sup>Christina Ho, Legislating A Negative Right to Health: Health Impact Assessments<\/em>, 50 SETON HALL L. REV. 643, 647 (2020).<\/span> She makes a compelling case based on the precedent set for \u201cother regulatory impact assessments (RIAs) privileging non-health values such as economic freedom for small business, freedom from paperwork, economic protection for states and localities, religious liberty, and more. . . .\u201d90<\/a><\/sup>Id.<\/em><\/span><\/p>\n

There are many rights enumerated in United States law that protect the citizenry from government-imposed harm, such as NEPA.91<\/a><\/sup>See id.<\/em> at 658.<\/span> NEPA regulations mandate the consideration of HIAs:<\/p>\n

During Obama\u2019s second term Susan Bromm declared an EPA preference for HIAs over narrower risk assessments in the environmental impact reporting process because they capture the range of direct, indirect, and cumulative effects. For various reasons, however, including institutional insularity and gaps in research connecting policies to their ultimate health effects, this HIA mechanism remains underutilized, and health effects are not always identified in the environmental impact assessment process. Furthermore, NEPA-based health assessments cannot account for the health effects of many policies like tax measures that operate through economically or socially mediated pathways.92<\/a><\/sup>Id.<\/em> at 658\u201359.<\/span><\/p>\n

Cost measurements are necessary, but not sufficient, for crafting good policy. Cost score myopia may put lawmakers in opposition to the very thing that they are supposed to protect: constituent well-being. Health Impact Assessments, Health Impact Reviews and other types of tools or metrics that analyze the public health costs and benefits of public policies are being used in the United States and across the world.<\/p>\n

Today, Congress\u2014the most powerful policymaking body in the world\u2014has a unique opportunity to fully make use of these critical tools.<\/p>\n

We must factor health and well-being consequences into the decision-making process when drafting new laws. In doing so, we are able to take advantage of a hidden opportunity to improve health, save on health-related costs, and better use our limited resources. Importantly, we will also decrease inequity. By adopting the ideas outlined above and through the creation of a new Congressional Health Office, Congress can deliver upon its most important mission\u2014ensuring the general welfare and well-being for the American people for generations to come.<\/p>\n

Image credit: Carina McMillin<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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