Health Insurance and Federalism-in-Fact Academic Article uri icon


  • 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.

published proceedings

  • ABA Journal of Labor and Employment Law

author list (cited authors)

  • Pathak, R. A., & Maher, B. S

complete list of authors

  • Pathak, Radha A||Maher, Brendan S

publication date

  • October 2012