Health Insurance and Federalism-in-Fact

ABA Journal of Labor & Employment Law, Forthcoming

20 Pages Posted: 6 Aug 2012 Last revised: 26 Sep 2012

See all articles by Brendan S. Maher

Brendan S. Maher

University of Connecticut School of Law

Radha A. Pathak

Whittier Law School

Date Written: July 1, 2012


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.

Keywords: ACA, federalism, health insurance

Suggested Citation

Maher, Brendan S. and Pathak, Radha A., Health Insurance and Federalism-in-Fact (July 1, 2012). ABA Journal of Labor & Employment Law, Forthcoming. Available at SSRN:

Brendan S. Maher (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States


Radha A. Pathak

Whittier Law School ( email )

3333 Harbor Blvd.
Costa Mesa, CA 92626
United States

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