Health Insurance and Federalism-in-Fact
Brendan S. Maher
University of Connecticut School of Law
Radha A. Pathak
Whittier Law School
July 1, 2012
ABA Journal of Labor & Employment Law, Forthcoming
The constitutional legitimacy of the Patient Protection and Affordable Care Act (“ACA”) received substantial attention. Less examined has been the legislation’s sub-constitutional effect on the regulatory power that states can and might exercise. Regarding a state's ability to promulgate "sickness rules," (those legal rules pertaining to the conditions or treatment an insurance policy covers) and "non-sickness" rules (those legal rules pertaining to insurance other than sickness rules), we scrutinize the ACA itself and contrast it with the other most significant statute governing private health insurance, the Employee Retirement Income Security Act of 1974 (“ERISA”). The authors would like to thank the participants at the 2012 "Employee Benefits in an Era of Retrenchment" conference at Washington University for their comments and criticism.
Number of Pages in PDF File: 20
Keywords: ACA, federalism, health insurance
Date posted: August 6, 2012 ; Last revised: September 26, 2012
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