Tag Archives: insurance

10.23.09

Constitutional Limits on Insurance Regulation

By | Leave a Comment

The following is part of a longer paper addressing legal and policy issues raised by health insurance exchanges, which will be presented at the O’Neill Center’s Legal Issues in Health Reform symposium on Monday, October 26. The health reform legislation pending in Congress would dramatically expand federal regulation of health insurance. Indeed, in most states […]

Posted in Legal Issues ; Tagged: , , , , , , , , , , .

10.22.09

The McCarran-Ferguson Act of 1945: Time to be Repealed

By | Leave a Comment

For the most part, I have found the congressional debate over health insurance reform largely dispiriting and depressing. But every now and then, an event occurs that temporarily adds a bit of levity to the process. While all too infrequent, sometimes the political posturing is instructive on many levels. The release of the health insurance […]

Posted in Legal Issues ; Tagged: , , , , , , , .

10.21.09

It’s The Sick, Stupid

By | Leave a Comment

Ending discrimination against the sick is a central goal in health reform; all of the major bills ban health insurers from denying enrollment based on health status. But discrimination against the sick does not end once the insurance card arrives in the mail. Insurers have a menu of options for curbing the use of necessary […]

Posted in Legal Issues ; Tagged: , , , , , , , , .

10.14.09

More on Takings

By | Leave a Comment

The individual mandate is not the only provision of the proposed health care reform legislation to raise takings clause issues. All of the bills currently marked up by the jurisdictional House and Senate committees include provision for the establishment of “exchanges” (called “gateways” in the Senate Health, Education, Labor, and Pensions (HELP) Committee bill), which […]

Posted in Legal Issues ; Tagged: , , , , , , , , , , , , .

10.14.09

“Taking” Legal and Economic Liberties, Seriously?

By | Leave a Comment

Constitutional opposition to an individual mandate is usually argued in terms of lack of federal power, but the real motivation is the feeling that a mandate violates individual rights. Opponents would be no less exorcised if a mandate came from the States, which generally have plenary authority over social and economic matters. What basis might […]

Posted in Legal Issues ; Tagged: , , , , , , .

10.11.09

An Income Tax that Doesn’t Tax Income?

By | Leave a Comment

Tim’s detailed analysis of tax provisions in the Constitution that might apply to health reform is the most thorough I know of, but it only begins to map the issues, which are tricky and important enough that they deserve more attention from constitutional tax law experts. As I synthesize Tim’s points, it seems that the […]

Posted in Legal Issues ; Tagged: , , , , .

10.08.09

Is it a Tax? Is it Constitutional?

By | Leave a Comment

By far the most controversial provision of the health care reform legislation pending in Congress from a constitutional perspective has been the individual mandate. The primary controversy has concerned the issue, which we addressed two weeks ago, of whether the commerce clause authorizes Congress to impose an individual mandate. A different constitutional issue, however, was […]

Posted in Legal Issues ; Tagged: , , , , , , , , , , , , .

10.05.09

Professor Clark Havighurst Responds to Proposal Amending Health Insurance Antitrust Laws

By | Leave a Comment

Recently, Members of Congress have introduced legislation to change the antitrust laws as they relate to health insurance. (See: Modern Healthcare of September 18; free registration is required to view). Some have discussed including such legislation as part of comprehensive health reform. Clark Havighurst of Duke University Law School is the godfather of the field […]

Posted in Legal Issues ; Tagged: , , , , , , , .

09.30.09

Civil War Redux

By | Leave a Comment

As Tim Jost well explains, the principle of Federal Supremacy is so well settled that the threat by some state governors or legislators to bar their citizens from complying with federal health care reform is overt legal defiance, or a form of civil disobedience if you will. Civil disobedience might be justified in some circumstances, […]

Posted in Legal Issues ; Tagged: , , , , , .

09.29.09

Firing Again on Fort Sumter

By | Leave a Comment

The health law reform constitutional law issue de jour seems to be whether the states by adopting amendments to their own constitutions can block implementation of the individual mandate on their soil. See the New York Times article, Health Care Overhaul and Mandatory Coverage Stir States’ Rights Claims. Most notably, Arizona has placed a constitutional […]

Posted in Legal Issues ; Tagged: , , , , , , , .

Stay Informed

Signup for our mailing list and stay up to date on the latest happenings at The O’Neill Institute

Or sign up for our RSS Feed

The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

See the full disclaimer and terms of use.