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Article
Enough About the Constitution: How States Can Regulate Health Insurance Under the ACA
Yale Law & Policy Review
  • Brendan S Maher
  • Radha A Pathak
Document Type
Article
Publication Date
3-2013
ISSN
0740-8048
Abstract

Last term, the United States Supreme Court upheld the constitutionality of the Affordable Care Act in a landmark decision. It is a forceful reminder that America’s oldest question — how power should be shared between federal and state sovereigns — retains powerful political salience. Critics have reflexively attacked the decision as an assault on states’ rights, while supporters have celebrated the result. Regrettably, insufficient attention has been paid to how, in actuality, health care regulatory authority has been and will be divided between federal and state governments. In this Article, we fill that gap. To do so, we apply “federalism-in-fact,” a theory that seeks to measure the real-world, as opposed to theoretical, apportionment of power between sovereigns. We conclude that the Affordable Care Act has in important ways increased states’ power to regulate private health insurance when viewed in proper contrast to the previously exclusive ERISA regulatory regime. In addition, we offer recommendations on how states can use their freedom under the Affordable Care Act to grow their regulatory markets, and we explain why collateral forces are likely to increase state regulatory power even if states do nothing.

Num Pages
33
Publisher
Yale Law School
File Type
PDF
Citation Information
Brendan S Maher and Radha A Pathak. "Enough About the Constitution: How States Can Regulate Health Insurance Under the ACA" Yale Law & Policy Review Vol. 31 Iss. 2 (2013) p. 275 - 307
Available at: http://works.bepress.com/brendan_maher/25/