Congressman TJ Cox, Dr. Kathy Murphy, & Rebecca Kahn
Protecting and promoting the public’s health is one of the most important roles of government. The preamble of the United States Constitution states that our government’s role is to “secure the blessings of Liberty” and “insure domestic Tranquility” through the establishment of “Justice,” a “common defense,” and through the “promot[ion] of general Welfare” for ourselves and future generations.1 U.S. CONST. pmbl. Article I of the Constitution establishes the legislative branch of the federal government—the Congress—which has the purpose of enacting laws in service of this preamble.2 U.S. CONST. art. I.
Unfortunately, public health or human well-being is not formally considered in the congressional lawmaking process, much less given primacy. Instead, a potential law’s effect on the federal budget is the only scored consideration in the annual legislative budget process.3 MEGAN S. LYNCH, CONG. RSCH. SERV., 98-721, INTRODUCTION TO THE FEDERAL BUDGET PROCESS 14–15 (2012). Since the Congressional Budget and Impoundment Control Act of 1974, the requirement of a cost estimate in the form of a Congressional Budget Office (“CBO”) score for most legislative proposals has oriented the lawmaking process towards economic considerations, first and foremost.4Frequently Asked Questions About CBO Cost Estimates, CONG. BUDGET OFF., https://www.cbo.gov/about/products/ce-faq [https://perma.cc/J6FD-MAEV]. While this is a critical function, as Robert Kennedy stated in 1968, “the gross national product does not allow for the health of our children . . . [it] measures everything in short, except that which makes life worthwhile.”5Sen. 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].
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 See James Ellsmoor, New Zealand Ditches GDP for Happiness and Wellbeing, 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]. However, led by the World Health Organization (“WHO”), 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.7See Promoting Health in All Policies and Intersectoral Action Capacities, WORLD HEALTH ORG., https://www.who.int/activities/promoting-health-in-all-policies-and-intersectoral-action-capacities [https://perma.cc/FX9V-H8YP].
WHO Director-General Dr. Tedros Adhanom Ghebreyesus recently stated that “the 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.”8WHO Establishes Council on the Economics of Health for All, 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]. The WHO created a task force to outline how different countries can center health and equity in policymaking.9Chris Brown et al., Governance for Health Equity, WORLD HEALTH ORG. (2014), https://www.euro.who.int/__data/assets/pdf_file/0020/235712/e96954.pdf [https://perma.cc/6TWD-TAZT]. Speaking half a century after Robert Kennedy and echoing his call for well-being, Dr. Mariana Mazzucato, a prominent economist who chairs the WHO’s new Council on the Economics of Health for All, stated that its agenda will be “to shape our economies so they truly have well-being and inclusion at the centre of how we create value, measure it and distribute it.”10WHO, supra note 8.
The Centers for Disease Control and Prevention (“CDC”) defines “social determinants of health” as “conditions in the places where people live, learn, work, and play that affect a wide range of health and quality-of life-risks and outcomes.”11Social Determinants of Health: Know What Affects Health, CTRS. FOR DISEASE CONTROL & PREVENTION (Mar. 9, 2021), https://www.cdc.gov/socialdeterminants/index.htm [https://perma.cc/MAZ6-W3U8]. The 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.12Legislative Search, CONGRESS.GOV, http://www.congress.gov [https://perma.cc/AF9C-XWEM] (search in search bar for “social determinants of health”; on the left side of the page, under Limit Your Search check “Legislation”; under Congress check all from 110 through 117; under Bill Type check “Bills” and “Resolutions”). The authors conducted a search in Congressional data records for bills that mention “social determinants of health,” which displayed 148 federal bills introduced since 2007.13Id. 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.14Legislative Search, CONGRESS.GOV, http://www.congress.gov [https://perma.cc/F9F3-3T8E] (search in search bar for “social determinants of health”; on the left side of the page, under Limit Your Search check “Legislation”; under Congress check all from 110 through 117; under Bill Type check “Bills” and “Resolutions”; under Status of Legislation, check “Became Law”). Although an imperfect proxy, a mere two percent passage rate indicates the potential utility of an enhanced congressional focus on health and well-being.
As the United States contemplates investments in human well-being, it can emulate the global health community’s 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.15See 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).
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,16See Barbara Sprunt, Here’s What’s in the American Rescue Plan, 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]. highlights this disconnect: the costs of a wage increase were more salient to lawmakers than downstream societal benefits.17See Niv Elis, New CBO Report Fuels Fight Over $15 Minimum Wage, 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].
The CBO’s report on the Raise the Wage Act of 2021 concludes: “The cumulative budget deficit over the 2021–2031 period would increase by $54 billion.”18CONG. 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]. As a secondary note, the CBO stated: “The number of people in poverty would be reduced by 0.9 million.”19Id. at 2. However, 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.
A multidisciplinary evaluation of the Raise the Wage Act of 2021 could have captured the downstream benefits of increased wages, not only for workers’ health or well-being, but also the overall national effects of further economic consumption.
Considering legislation in budgetary terms alone limits our ability to provide for longer-term societal growth.20See generally 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]. It is time for a change.
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—a Congressional Health Office (“CHO”)—focused 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 “health” or “well-being” grade.
II. THE LANDSCAPE: EXISTING PROBLEMS AND INNOVATIVE SOLUTIONS
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.
The global pandemic has exacerbated and highlighted existing health inequities in our society.21ELIZABETH 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]. Notably, the United States stands out as an outlier for poor performance among the nations deemed best equipped to handle such a crisis.22See Martha Lincoln, Study the Role of Hubris in Nations’ COVID-19 Response, NATURE (Sept. 15, 2020), https://www.nature.com/articles/d41586-020-02596-8 [https://perma.cc/59R8-BBE7]. Over 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.23Theresa Andrasfay & Noreen Goldman, Reductions in 2020 US Life Expectancy due to COVID-19 and the Disproportionate Impact on the Black and Latino Populations, 118 PROC. NAT’L ACAD. SCIS. e2014746118, at 1 (2021). 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).24Id. at 3. Life expectancy is just one of many metrics that displays the health inequities present in our society.
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 “health in all policies” (“HiAP”) in all legislation.25Amy T. Campbell, What Hope for Health in All Policies’ Addition and Multiplication of Equity in an Age of Subtraction and Division at the Federal Level?, 12 ST. LOUIS U. J. HEALTH POL’Y 59, 71 (2018). The CDC defines “health in all policies” as “a collaborative approach that integrates and articulates health considerations into policymaking across sectors to improve the health of all communities and people.”26Health in All Policies, CTRS. FOR DISEASE CONTROL & PREVENTION (June 9, 2016), https://www.cdc.gov/policy/hiap/index.html [https://perma.cc/PRJ8-FJ78]. Today, more tools are at hand to measure and evaluate population health, including Health Impact Assessments (“HIAs”) and economic evaluations (like cost-benefit and cost-effectiveness analysis),27See generally Ross C. Brownson et al., Evidence-Based Public Health: A Fundamental Concept for Public Health Practice, 30 ANN. REV. PUB. HEALTH 175 (2009). racial equity assessments,28See Nathan T. Chomilo, Building Racial Equity Into The Walls of Health Policy, HEALTH AFFS. BLOG (Dec. 1, 2020), https://www.healthaffairs.org/do/10.1377/hblog20201119.508776/full/ [https://perma.cc/72TH-G8G8]. and health impact reviews.29See Keshia M. Pollack Porter et al., Considering Health and Health Disparities During State Policy Formulation: Examining Washington State Health Impact Reviews, 19 BMC PUB. HEALTH 862, 863 (2019).
There are numerous examples where a health-in-all-policies approach helped improve outcomes.30Id.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.31PEW, HEALTH IMPACT ASSESSMENT (2010) https://www.pewtrusts.org/en/~/media/ Assets/External-Sites/Health-Impact-Project/healthimpactassessmentbringingpublichealthdatatodecisionmaking.pdf [https://perma.cc/J56X-QZEP]. These assessments address health risks and benefits of public policy decisions made outside the health sector, tapping into knowledge about social determinants.32PEW, DO HEALTH IMPACT ASSESSMENTS HELP PROMOTE EQUITY OVER THE LONG TERM? 26 (2020), https://www.pewtrusts.org/-/media/assets/2020/10/do_health_impact_assessments_report_v3b.pdf [https://perma.cc/N29Y-MX8W]. They bring together public health expertise, scientific data, and community input.33See supra note 32.
At the state level, various legislative bodies have used HIAs, driven by a formalized process.34PEW, 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]. In some cases, this formalized process has been authorized or required in state statute.35Id. at 5. Washington State, for example, has authorized health impact reviews (“HIRs”), a model which the federal legislature could follow.36WASH. REV. CODE § 43.20.275 (2006). In 2019, a study conducted by Dr. Pollack Porter at Johns Hopkins regarding Washington’s Health Impact Reviews concluded:
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.37See Pollack Porter & McInnis-Simoncelli, supra note 30, at 862.
Meanwhile, at the federal level, the use of HIAs has sometimes been in the context of implementing the National Environmental Policy Act (“NEPA”), which requires federal agencies to evaluate the health effects of proposed federal actions.38Christina S. Ho, Legislating a Negative Right to Health: Health Impact Assessments, 50 SETON HALL L. REV. 643, 658–59 (2019).
In 2011, the National Research Council—an arm of the National Academies of Sciences, Engineering, and Medicine (“NASEM”)—published a report aimed at developing “a 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” and assessing “the 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.”39A Framework and Guidance for Health Impact Assessment, NAT’L ACADS. https://www.nationalacademies.org/our-work/a-framework-and-guidance-for-health-impact-assessment [https://perma.cc/VZ9F-TDV6 ]. They concluded that “[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.”40NAT’L RSCH. COUNCIL, IMPROVING HEALTH IN THE UNITED STATES: THE ROLE OF HEALTH IMPACT ASSESSMENT 112 (2011).
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 “given the sparseness of quantitative data on associations between many policy decisions and health.”41Id. at 112–13.
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 (“AHEAD”) 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.).42Assimilating Health and Equity Assessments into Decision-making (AHEAD) Act, H.R. 7510, 116th Cong. (2020). 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.).43Assimilating Health and Equity Assessments into Decision-making (AHEAD) Act, S. 4919, 116th Cong. (2020). This bill would direct HHS to commission NASEM to study the use of tools, such as Health Impact Assessments, that assess a policy’s impact on population health and well-being.44See H.R. 7510 § 2(b); S. 4919 § 2(b).
Language from the bill was included in the FY 2021 Labor, Health and Human Services, Education, and Related Agencies (“LHHS”) House Appropriations package and passed into law due to the inclusion of the LHHS Appropriations report in the end-of-year coronavirus omnibus.45H.R. REP. NO. 116-450, at 209 (2021). Specifically, the report included the following language:
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).46Id.
The Biden Administration has also taken actions that signal alignment with a community-engaged and evidence-based federal health-in-all-policies approach.47See, e.g., Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 2021 DAILY COMP. PRES. DOC. 4–5 (Jan. 27, 2021).
III. THE CREATION OF A CONGRESSIONAL HEALTH OFFICE AS A PARALLEL TO THE CBO
To accommodate the nation’s changing understanding of the importance of addressing well-being, we propose the creation of a Congressional Health Office (“CHO”). Similar to the Congressional Budget Office (“CBO”) 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’s agencies, and private organizations in order to generate outputs to measure legislation.
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’s 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.48See Sandro Galea et al., Social Determinants of Health, Data Science, and Decision-Making: Forging a Transdisciplinary Synthesis, 17 PLOS MED. 1, 1 (2020). 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.49See id. at 1–2.
As Jeffrey Sachs and his co-authors write in Six Transformations to Achieve the Sustainable Development Goals,
New ways for decision-making to engage social movements—such as those around decarbonization—are 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.50Jeffrey D. Sachs et al., Six Transformations to Achieve the Sustainable Development Goals, 2 NATURE SUSTAINABILITY 805, 812 (2019).
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.
The CHO would be an independent institution comparable to the CBO. The history of the CBO’s creation and its impact on lawmaking provides a rationale and template for a CHO. As stated by Alice Rivlin, founding director of the CBO, “Democracies need politicians dedicated to a variety of different policies and eager to argue their point of view. But elected leaders also need reality checks—competent neutral evaluators of the competing policy claims.”51Alice 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]. The CBO provides a quantitative metric for policymaking, while the CHO would provide a qualitative score.
From the ratification of the Constitution through World War I, executive branch departments submitted annual budget requests to the Congress.52Hist., Art & Archives U.S. House of Reps., Origins & Development: From the Constitution to the Modern House—Power of the Purse, https://history.house.gov/Institution/Origins-Development/Power-of-the-Purse/ [https://perma.cc/YW9E-WJXW]. However, World War I generated substantial growth in the Federal budget and resulted in a need to gain better control of the budget process.53CONG. BUDGET OFF., HIST. (2020), https://www.cbo.gov/about/history [https://perma.cc/L752-RGF9]. 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.54Id. The law also created the Bureau of the Budget that, in 1971, was renamed the Office of Management and Budget.55Id.
The 1921 Budget Act concentrated power in the hands of the Presidency by allowing the President to control the budget of departments.56Id. Over the next fifty years, tension grew between the Executive Branch and Congress, which found itself at an institutional disadvantage—unable to set priorities, coordinate spending and revenue bills, or develop economic reports independently of the President.57Id.
In 1973 and 1974, President Nixon refused to disburse twelve billion dollars of congressionally-appropriated funds.58BANCROFT LIBRARY, 1974 Congressional Budget and Impoundment Control Act (2011), https://bancroft.berkeley.edu/ROHO/projects/debt/budgetcontrolact.html [https://perma.cc/6RSJ-58FN]. 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 “Budget Act of 1974”) to take power over the federal budget back from the president.59FIRST BRANCH FORECAST, CONGRESS’S POWER OF THE PURSE (Aug. 27, 2020), https://firstbranchforecast.com/2020/08/27/congress-power-of-the-purse/ [https://perma.cc/CRM4-M846].
The Budget Act of 1974 established the CBO to address fiscal irresponsibility and political manipulation of proposed legislation.60See Robert P. Saldin, Gaming the Congressional Budget Office, NAT’L AFFS. (2014), https://www.nationalaffairs.com/publications/detail/gaming-the-congressional-budget-office [https://perma.cc/E3M5-TLMN]. The CBO’s mission is to help Congress make more effective budget and economic policy. This mission is, by its charter, as narrow as possible.61See 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]. Further, the CBO must produce high-quality analyses with limited resources.62Id. However, even the most impressive microsimulation, macroeconomic, and regression models cannot capture the full scope of a legislative proposal’s budgetary effects—let alone its non-economic, health-related effects.
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 “80 percent of preventive medical services have been found to lead to higher health care spending overall” and proposed legislation “increased federal budget deficits in many cases.”63CONG. BUDGET OFF., HOW CBO ANALYZES APPROACHES TO IMPROVE HEALTH THROUGH DISEASE PREVENTION (2020), https://www.cbo.gov/publication/56345 [https://perma.cc/SJL2-R3ZU]. The report also noted that services can “prevent diseases from occurring and . . . detect the presence of a disease before symptoms appear,” and “[e]xpanded government support for preventive care can improve people’s health, and for that reason it might be considered worthwhile even if it increased federal budget deficits in many cases.”64Id.
The CBO’s health economists caution that “the effects on the federal budget and on people’s health are just two of many possible factors that policymakers may weigh in considering proposals to expand the use of preventive medical services.”65Id. Here, the CBO itself calls for the consideration of people’s health. While the CBO measures effects on the federal budget, there is currently no formal process to measure effects on our citizens’ health.
A Congressional Health Office focused on population health would supplement the CBO’s 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’s 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’s opportunity to live a healthy, productive life.66Jessica Kent, How the Social Determinants of Health Impact Population Wellness, HEALTH IT ANALYTICS (Jan. 2, 2018), https://healthitanalytics.com/news/how-the-social-determinants-of-health-impact-population-wellness [https://perma.cc/5FRA-YNCN]. It is critical to measure and incorporate these social determinants of health into the evaluation of legislation.67See Barry M. Popkin et al., Measuring the Full Economic Costs of Diet, Physical Activity and Obesity-Related Chronic Diseases, 7 OBESITY REV., 271–293 (2006). Similar to the Congressional Research Service, the CHO could be tasked with providing individual district-level analyses for legislators, since county and regional health varies.68See County Health Rankings Model, CNTY. HEALTH RANKINGS & ROADMAPS (2021), https://www.countyhealthrankings.org/explore-health-rankings/measures-data-sources/county-health-rankings-model [https://perma.cc/7QV6-6ESH]. In sum, the goal of this proposed office would be to optimize overall population health and rectify health disparities prevalent among marginalized groups.
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—the field of budgetary economics—was not previously a discipline unto itself prior to the creation of the CBO.69Kathleen Murphy & Keshia M. Pollack Porter, Time for a Second Public Health Revolution: A Congressional Health Office to Score Federal Legislation, HEALTH AFFS. (Sept. 22, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200915.68239/full/ [https://perma.cc/Z5ZV-U2F2]. In a similar manner, the CHO may create a new multidisciplinary field with aforementioned professional domains (and likely others) oriented to mission-driven policymaking.70Id.
In order to promote laws that improve population health and to enhance the CBO’s scoring function, the CBO’s cost-estimating function (“CBO score”) could complement a CHO’s corollary health-estimating function (“CHO score”). Today, the CBO has a 10-year window for its budgetary evaluation.71CONG. BUDGET OFF., supra note 63. If a CHO score were processed with a longer-term, variable window, this could inform the CBO’s economic analysis of the law’s impact. Attempting to manipulate CBO scoring windows and assumptions has long been a tool used to skew the score to a given stakeholder’s advantage.72See, e.g., Alexander Bolton, Sessions: Ten-Year Scoring of Senate Immigration Reform Bill Inadequate, 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]. 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.
IV. HEALTH INEQUITIES: A CASE STUDY
A CHO analysis could pinpoint the root causes of health inequities, facilitating the creation of targeted policies to rectify them. We 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.
An examination of the Farm Bill, which governs the agricultural and food marketplace across the nation, illustrates how merely considering a policy’s economic impacts results in substandard public policy.73Agriculture Improvement Act of 2018, H.R.2, 115th Cong. (2018). This large, multi-pronged bill is renewed and revised every five or six years.74See RENEE JOHNSON & JIM MONKE, CONG. RSCH. SERV., RS22131, WHAT IS THE FARM BILL? 1 (2019). 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’ diets.75See Mark Muller et al., Considering the Contribution of U.S. Food and Agricultural Policy to the Obesity Epidemic: Overview and Opportunities, 4 J. HUNGER & ENV’T. NUTRITION 3, 15 (2009). 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.76See Caroline Franck et al., Agricultural Subsidies and the American Obesity Epidemic, 45 AM. J. PREVENTIVE MED. 327, 328 (2013).
Agricultural subsidies provide an important safety net to farmers operating in unpredictable markets.77See JOHNSON & MONKE, supra note 74, at 6. However, the enduring subsidy of these crops incentivizes their production over fruits and vegetables.78Tamar Haspel, Farm Bill: Why Don’t Taxpayers Subsidize the Foods that are Better for Us?, 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]. Moreover, a provision of the bill prevents farmers who receive a commodity subsidy from growing fruits and vegetables.79David Wallinga, Agricultural Policy and Childhood Obesity: A Food Systems and Public Health Commentary, 29 HEALTH AFFS. 405, 407 (2010). At the expense of promoting healthy American diets, today’s price support programs incentivize the overproduction of commodity crops.80See Franck, supra note 76, at 332. 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.81See Angela Hilmers et al., Neighborhood Disparities in Access to Healthy Foods and Their Effects on Environmental Justice, 102 AM. J. PUB. HEALTH 1644, 1644 (2012); see also Caroline Franck et al., Agricultural Subsidies and the American Obesity Epidemic, 45 AM. J. PREVENTATIVE MED. 327, 329 (2013) (discussing how changes in policy like the Farm Bill could help combat obesity). Paradoxically, the Department of Agriculture promotes a diet based on high consumption of fruits and vegetables while subsidizing the opposite.82Dietary Guidelines for Americans 2020-2025, DHS (Dec. 2020) https://www.dietaryguidelines.gov/sites/default/files/2021-03/Dietary_Guidelines_for_Americans-2020-2025.pdf [https://perma.cc/F7TF-XWS7].
Some of the leading causes of death in America are obesity-related chronic illnesses: heart disease, cancer, and stroke.83See Nat’l Ctr. for Health Stat., Leading Causes of Death, CTRS. FOR DISEASE CONTROL & PREVENTION (2019), https://www.cdc.gov/nchs/fastats/leading-causes-of-death.html [https://perma.cc/6788-YWFY]; see also Luma Akil & H. Anwar Ahmad, Relationships between Obesity and Cardiovascular Diseases in Four Southern States and Colorado, 22 J. HEALTH CARE POOR UNDERSERVED 61, 61 (2011). The costs of obesity are carried not just by individuals, but also by federal programs (such as Medicaid and Medicare) that support their care.84See Y. Claire Wang et al., Severe Obesity in Adults Cost State Medicaid Programs $8 Billion in 2013, 34 HEALTH AFFS. 1923, 1923 (2015); see also 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]. 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.85See JOHNSON & MONKE, supra note 74, at 4. 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.
In a review of United States agricultural policy and its impact on the American obesity epidemic, Franck, et al. aptly note that “[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.”86See Franck, supra note 76, at 332. The authors make the salient point that “public 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.”87Id.
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’ 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.
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.
The duty of the federal government to protect and promote the public’s health and well-being underpins the argument proposed here for compulsory, structured policy evaluations on health impact.
In a growing movement, the notion of health as a fundamental legal right is being argued in both the political and legal communities.88Dr. Tedros Adhanom Ghebreyesus, Health is a fundamental human right, 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]. 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.89Christina Ho, Legislating A Negative Right to Health: Health Impact Assessments, 50 SETON HALL L. REV. 643, 647 (2020). She makes a compelling case based on the precedent set for “other 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. . . .”90Id.
There are many rights enumerated in United States law that protect the citizenry from government-imposed harm, such as NEPA.91See id. at 658. NEPA regulations mandate the consideration of HIAs:
During Obama’s 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.92Id. at 658–59.
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.
Today, Congress—the most powerful policymaking body in the world—has a unique opportunity to fully make use of these critical tools.
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—ensuring the general welfare and well-being for the American people for generations to come.