Development of public health in America: ‘Guaranteed Issue’ mandates

Today, the USA is struggling to balance access to healthcare for all its citizens with constraints of the federal budget and precepts of the US Constitution. This political struggle is nothing new.¹ It became acute, however, when the Patient Protection and Affordable Care Act (PPACA),² for short, the Affordable Care Act (ACA), or more commonly known as Obamacare,³ mandated ‘guaranteed issue’ laws⁴ whereby insurers are required to make health insurance plans of all kinds, whether individual, small or large group health plans, available to all Americans⁵ without exclusions based on preexisting conditions,⁶ age, etc. and without premium increases based on such risk factors.⁷

This article does not explore possible constitutional challenges to guaranteed issue laws. Some of those challenges have been made and decided by the courts. In order to understand the current challenges to such a mandate, however, it is important to understand the background context. Thus, this article takes a largely historical overview of the growth of the public health system and healthcare regulations in the USA, including their constitutional foundations. This approach reveals how a slow but steady progression of federal healthcare regulations culminated in the promulgation of the ACA mandates, including guaranteed issue health plans, by expanding existing laws under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)⁸ and the Employee Retirement Income Security Act of 1974 (ERISA).⁹ Although these laws appear to provide for universal healthcare, in fact, universal healthcare in the USA is still illusory.

Constitutional Foundations of Public Healthcare Regulations

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. M'Culloch v. State, 17 U.S. 316, 421 (1819)

The development of the American federal healthcare system began through public health and infectious disease initiatives. Historically, ‘even early governments, which existed primarily to promote the acquisition of wealth and territory by monarchs and their families, recognized some obligation to protect the health and safety of their subjects’.¹⁰ Infectious diseases, such as polio, typhus, cholera and many others could not be contained on a local level alone. So, it is not a surprise that the framers of the US Constitution envisioned protection and promotion of public health as part of the federal government's responsibilities.¹¹

Relevant here, the federal government has derivative powers to regulate health matters through Article I, Section 8 of the US Constitution:

• The Congress shall have power to lay and collect taxes … provide for the common defense and general welfare of the USA;

• To regulate commerce … among the several States;

• To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the USA.

There is no provision for ‘the Courts, Congress alone, the Executive Branch, or the People at large to amend this revered document, the US Constitution.’¹² Importantly, the Tenth Amendment to the US Constitution states that the federal government is a government of limited powers—all powers not expressly or implicitly given to the federal government are reserved to the states. There is no specific constitutional provision to afford healthcare for its citizens.

To regulate public health, the federal government draws authority primarily from constitutional provisions providing for the general welfare and to regulate interstate commerce.¹³ Interestingly, the ACA was upheld through the government's power to lay and collect taxes,¹⁴ which may be viewed as a somewhat unorthodox application of the US Constitution to uphold healthcare initiatives.

Through the broad and general power to provide for general welfare, the federal government has controlled the following aspects of public health since the early 1900s: (a) require a class of persons to submit to a preventive vaccine or curative treatment;¹⁵ (b) control personal behavior by quarantining exposed individuals¹⁶ and (c) control environmental health risks by closing or regulating specified establishments.¹⁷

It was not until the mid-1900s, however, with the advance of medical and scientific discoveries that the federal government developed the tools and the means to promote the health and welfare of its citizens through uniform federal regulations. During this time, Congress began to delegate its duties to newly formed federal agencies under the Necessary and Proper Clause of the US Constitution.

There was, in fact, a proliferation of federal agencies and federal services intended to provide uniform regulation of specific industries, including healthcare, across state lines. For instance, Congress enacted Food and Drug Administration (FDA) (1938); Centers for Disease Control and Prevention (CDC) (1946); Congress sponsored healthcare systems for the military and veterans (1947);¹⁸ the Department of Health & Human Services (HHS) (1953) and, enacted programs such as Medicare (1964)¹⁹ and Medicaid (1966),²⁰ collectively as the Centers for Medicare and Medicaid Services (CMS).²¹ Today, there are >30 federal health-related agencies, subagencies²² and independent agencies.²³ The ACA, with its implementation having commenced in 2010 through 2014,²⁴ required the formation of additional federal government agencies; controversially, further mandating states to create state agencies to manage the benefits and guarantees provided by the ACA.²⁵

The existence of federal administrative agencies is frequently viewed as antithetical and offensive to foundational concepts of the Constitution, which is ‘superior to any act of the legislature.’²⁶ Some academics and lawyers alike, argue that it was not ‘necessary’ to invent administrative agencies, and it was certainly not ‘proper’ under the Necessary and Proper Clause of the US Constitution, in that the agencies create a so-called fourth branch of government, a branch that performs both functions of creating rules and enforcing them.²⁷ Essentially, the executive and judicial branches collapse into one administrative agency. In implementing healthcare initiatives, Congress expanded its own agenda without systematic structural restraint. This is inconsistent with the basic constitutional scheme, in that it loses the checks-and-balances system and the separation of powers that, arguably, make representative democracy work.²⁸

From the mid-1900s through present, the federal government, through its regulations, encouraged health coverage for an increasing number of the population. By the 21st century, and prior to the ACA, most people were covered with group health insurance through their employers or through the federal Medicare program and joint federal and state Medicaid program administered by the CMS. Medicare covers the elderly aged 65 and over. Eventually and through strong lobbying, Congress expanded Medicare coverage to include benefits, for instance, to people with end-stage renal disease.²⁹ Prior to the ACA, Medicaid covered the poor with dependent children (poor without children were not eligible for coverage) and people with certain disabilities. It was not until the ACA that the class of ‘poor’ was expanded with a goal to cover the entire ‘gap’ population that traditionally went uninsured.³⁰

Both the federal and state governments have the right to establish healthcare regulations.³¹ The 10th Amendment of the US Constitution entrusts the states with ‘police powers’ to establish and enforce laws protecting the welfare, health and safety of their citizens. Consequently, it is the states, through their police powers, that historically oversee health and general welfare of their citizens, including regulation of health insurance (excluding health insurance provided by employers and Medicare). Importantly, state police powers ‘were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’³²

Further complicating the relationship between federal laws and state police powers is the doctrine of preemption that invalidates state laws that conflict with federal law.³³ The issue becomes circuitous when federal agencies regulate and enforce the ACA guaranteed issue initiatives and further take actions that preempt conflicting state healthcare laws, those state laws that Congress permitted the states to create in the first place by providing the states with police powers in the US Constitution.³⁴

Employer-based group health insurance, although voluntary prior to the ACA, was and still is regulated by ERISA. Once an employer offers a group health insurance plan, it entitles all its employees to coverage at lower premiums than individual markets and regardless of preexisting conditions. This is in stark contrast to individual health plans that prior to the ACA rejected coverage to people with preexisting conditions and commanded often-unaffordable premiums. In the last decade, however, the number of employers voluntarily offering group health insurance declined from 66 to 57%.³⁵ Predictably, the decline in employers offering health insurance has contributed to a significant increase in an uninsured population. Within 1 year, from 2008 to 2009, an additional 5 million people went uninsured.³⁶

Noticeably, the individual state markets armed with their police powers to establish and enforce laws protecting the welfare, health and safety of their citizens,³⁷ have been unable or unwilling to provide access to healthcare to all uninsured Americans. Leaving this essential healthcare responsibility to the individual states left between 16.7³⁸ and 50.7 million³⁹ individuals (depending on whose measurement is used) in the USA uninsured,⁴⁰ causing failure of the healthcare markets in this regard.

The OECD [the Organization for Economic Cooperation and Development] assessment of the United States concluded that, ‘[i]ncomplete insurance coverage and delayed access to care adversely affect[ed] population health outcomes and possibly economic performance.’⁴¹

In contrast to the domestic treatment of the healthcare system, initiatives by other developed countries reflect a view of healthcare as one of the most basic human rights. In 1948, with Eleanor Roosevelt (ironically, an American) as its, arguably, greatest contributor,⁴² the UN adopted a Universal Declaration of Human Rights:

‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’.⁴³

While developed countries recognize that the health and welfare of their citizens must be an integral part of their countries’ fundamental values and addressed collectively, the USA has made small steps in that direction, compartmentalizing each health issue (e.g., the renal disease example mentioned previously) and has avoided uniform application of a broader healthcare system while continuing a patchwork of federal regulations by administrative agencies.

ACA Expands HIPAA

In 2010, Congress made a value judgment as to the remaining Americans that were, historically, left uninsured and passed the ACA. Among many other benefits, the ACA mandated guaranteed issue insurance plans, meaning all health insurers were required to make their health plans available to anyone who wanted to purchase them (with further restrictions on premium rate increases, requirements for free preventative care.⁴⁴ All uninsured individuals were required to purchase health insurance (the individual mandate), and the government was to subsidize those individuals that could not afford to purchase health insurance. Controversially, to implement the ACA, the US Government involved the states in its scheme of universal health insurance coverage.

The idea of guaranteed issue health plans is nothing new, however. As stated previously, group insurers have been extending health plans, often across state lines, covering the majority of non-elderly US population without exclusions based on various risk factors for a number of decades.⁴⁵ Employer-based group insurance markets are regulated by ERISA, which is ‘a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.’⁴⁶ On a broader scale, HIPAA improved ‘portability and continuity of health insurance coverage in the group and individual markets, […] simplify[ied] the administration of health insurance, and [was designed] for [many] other purposes.’⁴⁷ In other words, ERISA and HIPAA have already defined and limited the use of preexisting condition exclusions for group plans.⁴⁸

The ACA reaffirms the 1996 HIPAA law, requiring insurance companies to provide guaranteed issue insurance policies and renew coverage to large and small group plans.⁴⁹ The ACA further converts from voluntary to mandatory the offering of health insurance by employers of 50 or more full-time employees.⁵⁰ Drawing the most attention is the ACA's extension of federal authority to cover a new group of people comprising ~10% of the entire population, those uninsured individuals. The ACA imposed guaranteed issue and renewal requirements and banned preexisting conditions clauses for individual plans.⁵¹ ‘Indeed, the insurance reform requirements of Title I of the ACA are simply amendments to HIPAA that extend its protections.’⁵² The expansion of already existing HIPAA provisions attempts to place healthcare values for all Americans, without exclusions and discrimination, in line with the rest of the developed world. ‘The CBO projects that 25 million people will have insurance through the marketplaces by 2017.’⁵³

Guaranteed Issue Laws Do Not Provide Universal Healthcare

A two-prong analysis may be useful to determine whether the new expansion of HIPAA through the ACA's guaranteed issue laws have created universal healthcare in the USA: (a) health plans must offer Minimal Essential Coverage⁵⁴ to anyone willing to pay for them; and, (b) individuals must be willing and able to pay for the health plans. In other words, to have genuine access to healthcare, the patient has to have an unobstructed ability to obtain health insurance and, importantly, be able to afford it. Guaranteed issue laws solve prong (a) problem of access to healthcare, but they do not entirely solve the issue of access to healthcare based on financial ability to pay for it.

In order to provide a realistic mandate for all eligible individuals to be covered under a health insurance plan, guaranteed issue laws were promulgated in conjunction with provisions to expand state-run Medicaid programs. This was accomplished by raising the poverty level of the Medicaid programs to cover the gap population, the uninsured individuals who are not poor enough to qualify for the state-run Medicaid programs for the poor, yet do not have sufficient funds to pay for health insurance premiums without partial or full subsidies from the government.⁵⁵ However, all state-sponsored health programs are cash-poor and are unable to handle the Medicaid expansion on their own.

To qualify a greater number of the population for the state Medicaid programs, the ACA, as originally promulgated, required states to accept federal funding to cover the expanded Medicaid population that the federal government was willing to cover at 100% that may later reduce to a minimum of 90% funding; and, if not accepted, the States may lose all their Medicaid funding (a sort of federal government blackmail).⁵⁶

In addition, states were required to implement and manage very complex, highly regulated by the federal government health insurance exchanges or the marketplaces (the terms are used interchangeably)⁵⁷ where people may compare and purchase health insurance. To reduce the states’ expected substantial financial undertaking to design and manage their own marketplaces, the federal government offered the states the use of federal platforms.⁵⁸ In doing so, the federal government perpetuated the ongoing tension with states. States have to balance the need for keeping costs at a minimum with the desire to control their own state health insurance programs, including the marketplace, without further federal government interference. Unsurprisingly, the more control states have exerted over their own marketplaces the higher the costs became.⁵⁹

States have already been wary of the federal government's increasing, and costly to administer, regulations. As Richard Epstein argues—if all the government did is focus on common pool problems that require uniform solutions for all, administrative agencies may not have raised so much controversy.⁶⁰ However, the federal government's control of the entire healthcare system is viewed as having great pitfalls, in that it assumes that all government officials will act in good faith to accomplish ambitious projects (healthcare being one of them).⁶¹ But too much discretion without proper oversight, where the checks-and-balances system is lost (see a previous example of federal agencies having created a so-called fourth branch of government), facilitates a system that inhibits the free market system.

The dynamic between the states and overreaching federal agencies, which the ACA only expanded and further empowered, creates a substantiated concern that the federal government is overstepping its boundaries established by the US Constitution and inhibits states from embracing the most fundamental of rights—access to healthcare by all citizens.

Southern states, in particular, challenged the mandatory nature of expansion of the Medicaid programs that are traditionally run by the states.⁶² Politically, this refusal to cover the uninsured, at arguably no additional cost to the states and, in fact, resulting in net fiscal benefits to state economies as a whole,⁶³ may stem primarily from believing in libertarian ideals above the health of a proportionately small group of their uninsured population (primarily the poor that are not sufficiently poor to qualify under the traditional Medicaid program).

While the US Supreme Court has upheld the constitutionality of the ACA's individual mandate through the government's power to lay and collect tax (the ‘what’ part of the law), it gutted its most significant provision requiring states to expand its Medicaid program to cover the remaining uninsured (the ‘how’ part of the law). Logically, the ‘what’ part of the law cannot be realized if the ‘how’ to do so is effectively taken away.

In the end, the US Supreme Court permitted each state to choose whether it is in their best interest to participate in the expansion of Medicaid programs. Significantly, today states do not run the risk of losing all their Medicaid funds if they refuse to accept federal funds to expand state-run Medicaid programs.⁶⁴ In so ruling, the Court perpetuated the uninsured problem in America, in that 22 states (now 19 states) that, arguably, needed the expansion the most, those predominantly southern states with the disproportionate population of the poor, refused to accept federal funds and expand their state Medicaid programs,⁶⁵ thus leaving the uninsured still uninsured and rendering the HIPAA expansion essentially meaningless in those geographic areas.⁶⁶

The Department of Health and Human Services (HHS) reported that as of March 2015, 16.4 million uninsured gained health insurance under the ACA for a 35% reduction in uninsured population.⁶⁷

Today, access to healthcare in America is still not a civil right nor is it recognized as a basic human right of its citizens. Disappointing as it may be to those who support universal healthcare, the ACA does provide a platform upon which the country can continue building and strengthening its healthcare system. It may be useful to be reminded that when Medicaid coverage was first promulgated in 1966, it took 6 years for participation to become widespread, with Arizona being the last state to accept Medicaid sixteen years thereafter, in 1982.⁶⁸

Acknowledgement

Gratitude goes to Loyola University Chicago School of Law, and more specifically, to the Beazley Institute for Health Law and Policy, for providing me with the platform to gather relevant information to write this piece during my pursuit of the LL.M in Health Law degree; and to my husband, lawyer and author, Young Kim, for his constructive feedback.

Notes

1

E.g., the Social Security Act (42 U.S.C. Chapter 7).

2

See, 42 U.S.C. Section 18001 (2010).

3

King v. Burwell, 135 S. Ct. 2480, 2507 (2015) (“We should start calling this law SCOTUScare,”—Scalia A.G., dissenting).

4

42 U.S.C.A. Section 300gg-11.

5

The ACA is applicable to a “citizen or national of the United States or an alien lawfully present in the United States” 42 U.S.C.A. Section 18071(e)(2). Furthermore, the ACA ‘carves out a series of exceptions, for those who are not considered “applicable” to the mandate or penalty.. The exempt classes include certain religious groups, illegal aliens, foreign nationals, and incarcerated prisoners.. While the indigent and members of Indian tribes are not exempt from the mandate, they are not subject to the penalty for failure to conform.’ Eleanor D. Kinney, Administrative Law Protections in Coverage Expansions for Consumers Under Health Reform, 7 J. Health & Biomedical L. 33, 65 (2011).

6

Sections 1201 and 2704, 124 Stat. at 154–155.

7

Prior to the ACA only six states required guaranteed issue health plans; accessed at, https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8327.pdf

8

P.L. No. 104–191, 110 Stat. 1938 (1996).

9

P.L. 93–406, 88 Stat. 829 (2 September 1974). ERISA is codified at Sections 1001 –1453 of title 29, U S Code and in Sections 401–415 and 4972–4975 of the Internal Revenue Code.

10

Eleanor D. Kinney, Administrative Law and the Public's Health, 30 J.L. Med. & Ethics 212, 213 (2002).

11

Id., quoting, W.E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, Hastings Const. L.Q. 541, 20 (1992): 267–335.

12

Hassan v. Fed. Election Comm'n, 893 F. Supp. 2d 248 (D.D.C. 2012) aff'd, 12-5335, 2013 WL 1164506 (D.C. Cir. 11 March. 2013), citing, Branch v. Smith, 538 U.S. 254, 273 (2003).

13

Indeed, in proposed legislation to enact the ACA's requirement to maintain minimum essential coverage, Congress made the following findings: “The individual responsibility requirement provided for in this section… is commercial and economic in nature, and substantially affects interstate commerce,” 42 U.S.C.A. Section 18091.

14

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2595 (2012).

15

Jacobson v. Massachusetts, 197 US 11 (1905).

16

Kelly O'Donnell, NJ Gov. Chris Christie to Ebola Quarantine Nurse: Go Ahead, Sue Me (28 October 2014, date last accessed), NBC News,http://www.nbcnews.com/storyline/ebola-virus-outbreak/nj-gov-chris-christie-ebola-quarantine-nurse-go-ahead-sue-n235436

17

Administrative Law and the Public's Health, quoting, L.O. Gostin, The Future of Public Health Law, Am. J.L. & Med., 12 (1986): 461–90, at 462.

18

38 U.S.C. Sections 1701–1784, Title 38, Veterans Benefits (2006).

19

An Overview of Medicare, The Henry J. Kaiser Foundation (April 2016), http://kff.org/medicare/issue-brief/an-overview-of-medicare/

20

A comprehensive look at the role of Medicaid within the healthcare system. Julia Paradise, Medicaid Moving Forward,The Henry J. Kaiser Foundation (9 March 2015, date last accessed), http://kff.org/health-reform/issue-brief/medicaid-moving-forward/

21

Health Care Coverage under the Affordable Care Act-A Progress Report,http://www.nejm.org/doi/full/10.1056/NEJMhpr1405667

22

National Information Center on Health Services Research and Health Care Technology (NICHSR); accessed at https://www.nlm.nih.gov/hsrinfo/keyorganizations.html; and, APIC, Outline of US Health Agencies, accessed at http://www.apic.org/Resource_/TinyMceFileManager/Advocacy-PDFs/outline_of_govt_health_agencies.pdf

23

US Government — Independent Agencies,https://www.hg.org/independent.html

24

Health Reform Implementation Timeline, The Henry J. Kaiser Foundationhttp://kff.org/interactive/implementation-timeline/

25

Eleanor D. Kinney, Administrative Law Protections in Coverage Expansions for Consumers under Health Reform, J. Health & Biomed. L., VII (2011): 33, 48; accessed athttp://www.suffolk.edu/documents/Law%20Journal%20ofH%20and%20B/Kinney-33-65.pdf

26

Marbury v. Madison, 5 US 137 (1803).

27

See, Richard Epstein, Is the Administrative State Consistent with the Rule of Law?http://www.law.uchicago.edu/node/69 (26 February 2015, date late accessed).

28

Id.

29

Since the expansion of Medicare people with renal disease live longer and better quality of life. Policy Priority 2: Protecting Access to the Medicare ESRD Program, http://www.kidneyfund.org/advocacy/policy-and-issues/policy-issues.html (28 February 2015, date last accessed).

30

Rachel Garfield and Anthony Damico, The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid – An Update, The Henry J. Kaiser Foundation (21 January 2016, date last accessed), http://kff.org/health-reform/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/ (The report focuses on the demographic characteristics of adults in the coverage gap).

31

The ACA forces to review the relationship between the states and the federal government. Further, the ACA “realigns prior relationships and […] add[s] new rights and duties: Between individuals and government through the creation of a right to accessible, affordable health insurance and a concomitant ‘personal responsibility’ to secure it; between the insurance industry and the government through reforms aimed at assuring access to affordable coverage; between larger employers and workers through the Act's ‘shared responsibility’ requirements; and between health care providers and public and private insurers through provisions aimed at long-term restructuring in how health care is organized and paid for.” Sara Rosenbaum, Can This Marriage Be Saved? Federalism and the Future of U.S. Health Policy Under the Affordable Care Act, 15 Minn. J. L. Sci. & Tech. 167 (2014), http://conservancy.umn.edu/bitstream/handle/11299/162649/Rosenbaum_MN_Journal_of_Law_Science_and_Technology_Issue_15-1.pdf?sequence=1&isAllowed=y

32

Rice v. Santa Fe Elevator Corp., 331 U S 218, 230 (1947).

33

Executive Order 13132 of 4 August 1999 — See 64 Fed. Reg. 43, 255 — 10 August 1999, Section 4. Special Requirements for Preemption.

34

See, the CMS Bulletin addressing tension between the “guaranteed issue” mandate and the several States that have not authorized issuers to offer health insurance products to all small employers in that market. The CMS uses the doctrine of preemption in support of the ACA initiatives, specifically, stating that “State laws do not ‘preempt’ federal laws.” See, The Relationship of Certain Types of State Laws to the Application of the Guaranteed Availability Requirements of the HIPAA of 1996 in the Small Group Market (June 2010); accessed at https://www.cms.gov/CCIIO/Resources/Files/Downloads/hipaa_00_03_508.pdf

35

Melissa Majerol, Vann Newkirk and Rachel Garfield, The uninsured: A primer—key facts about health insurance on the eve of coverage expansions,Kaiser Commission on Medicaid and the Uninsured (December 2014), http://kff.org/report-section/the-uninsured-a-primer-key-facts-about-health-insurance-and-the-uninsured-in-the-era-of-health-reform-what-was-happening-to-insurance-coverage-leading-up-to-the-aca/

36

Income, Poverty, and Health Insurance Coverage in the United States: 2009, p. 29 (September 2010); accessed at http://www.census.gov/prod/2010pubs/p60-238.pdf

37

US Const. amend. X.

38

Eleanor D. Kinney, Administrative Law Protections in Coverage Expansions for Consumers Under Health Reform, 7 J. Health & Biomedical L. 33, 34 (2011), quoting, US Census Bureau, Income, Poverty, & Health Ins. Coverage in the US P60–238: 2009, 25 fig. 8 (2010), accessed at http://www.census.gov/prod/2010pubs/p60-238.pdf.

39

Id., quoting, US Census Bureau, Newsroom, Income, Poverty & Health Ins. Coverage in the US: 2009 (16 September. 2010), http://www.census.gov/newsroom/releases/archives/income_wealth/cb10-144.html

40

Other authoritative texts cite as many as 32 million uninsured people prior to the ACA enactment. J. Stewart Showalter, The Law of Healthcare Administration, p. 60 (2015, 7th Ed.).

41

Insuring Americas Health: Principles and Recommendations, Institute of Medicine, p .26 (2004), Institute of Medicine,http://books.nap.edu/openbook.php?record_id=10874&page=26

42

The Franklin D. Roosevelt Presidential Library and Museum,http://www.fdrlibrary.marist.edu/library/er_humanrights.html (28 February 2015, date last accessed).

43

Universal Declaration of Human Rights, Article 25.1.

44

Section 2713, 124 Stat. at 131–32.

45

2015 Employer Health Benefits Survey, The Henry J. Kaiser Foundation,http://kff.org/report-section/ehbs-2015-summary-of-findings/

46

ERISA, U.S. Department of Labor,http://www.dol.gov/general/topic/retirement/erisa

47

Title 42, The Public Health and Welfare, Health Insurance Portability and Accountability Act of 1996, accessed at https://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/downloads/hipaalaw.pdf

48

29 U.S.C. Section 1181(a).

49

The Henry J. Kaiser Foundationhttps://kaiserfamilyfoundation.files.wordpress.com/2013/01/8327.pdf (accessed on 1 March 2015, date last accessed)29 U.S.C. Section 1182 (effective as of 2008); 42 U.S.C. Sections 300gg-1 and 300gg-2 (current law).

50

ObamaCare Employer Mandate, Obamacare Facts,http://obamacarefacts.com/obamacare-employer-mandate/

51

42 U.S.C. Sections 300gg-41 and 300gg-42.

52

U.S. Dept. of Health and Human Services v. State of Florida, 2012 WL 242899 (US), 19–20 (2012).

53

“The CBO projects that 25 million people will have insurance through the marketplaces by 2017.” David Blumenthal, M.D., M.P.P., and Sara R. Collins, Ph.D., Health Care Coverage under the Affordable Care Act-A Progress Report, N Engl J Med 2014; 371:275–281(17 July 2014), http://www.nejm.org/doi/full/10.1056/NEJMhpr1405667

54

10 health care benefits covered in the Health Insurance Marketplace, HealthCare.gov (22 August 2013), https://www.healthcare.gov/blog/10-health-care-benefits-covered-in-the-health-insurance-marketplace/; and, Types of health insurance that count as coverage, HealthCare.gov, https://www.healthcare.gov/fees/plans-that-count-as-coverage/

55

The article includes an interactive map entitled—State Decisions on ACA-Related Medicaid Expansion,National Conference of State Legislatures (NCSL) (4/15/2016), http://www.ncsl.org/research/health/affordable-care-act-expansion.aspx

56

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2601 and 2604 (2012).

57

“PPACA created a new mechanism for purchasing coverage called Exchanges, which are entities that will be set up in states to create a more organized and competitive market for health insurance by offering a choice of health plans, establishing common rules regarding the offering and pricing of insurance, and providing information to help consumers better understand the options available to them. Initially Exchanges will serve primarily individuals purchasing insurance on their own and smaller employers; states will have the option of opening Exchanges to larger employers a few years after implementation.” Explaining Health Care Reform: Questions About Health Insurance Exchanges (1 April 2010), http://kff.org/health-costs/issue-brief/explaining-health-care-reform-questions-about-health-2/

58

Another turning point in viability of the ACA model was a second seminal decision by the US Supreme Court holding that the states could choose whether they desire to implement a state-run marketplace, a federally facilitated marketplace, or a hybrid model run by the state and federal partnership. See King v. Burwell, 135 S.Ct. 2480, 2496 (2015) (“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for a united six-justice majority).

59

Richard Cauchi, State Actions to Address Health Insurance Exchanges,National Conference of State Legislatures (NCSL) (4/4/2016), http://www.ncsl.org/research/health/state-actions-to-implement-the-health-benefit.aspx (Interactive map depicting how much in federal grants each state has received to set up healthcare insurance exchanges).

60

See, Richard Epstein, Is the Administrative State Consistent with the Rule of Law?,http://www.law.uchicago.edu/node/69 (26 February 2015, date last accessed).

61

Id.

62

See, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

63

Laura Snyder and Robin Rudowitz, Medicaid Financing: How Does it Work and What are the Implications?The Henry J. Kaiser Foundation (20 May 2015), http://kff.org/medicaid/issue-brief/medicaid-financing-how-does-it-work-and-what-are-the-implications/

64

“The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs.” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694. ‘[T]he Constitution simply does not give Congress the authority to require the States to regulate.’” Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2574 (2012).

65

https://www.whitehouse.gov/share/Medicaid-map

66

As of April 2016, 19 states have not adopted the Medicaid expansion. Status of State Action on the Medicaid Expansion Decision, The Henry J. Kaiser Foundation,http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/

67

http://obamacarefacts.com/2015/03/16/obamacare-enrollment-numbers-as-of-march-2015/

68

David Blumenthal, M.D., M.P.P., and Sara R. Collins, Health Care Coverage under the Affordable Care Act — A Progress Report, N Engl J Med 2014; 371:275–281 (17 July 2014), http://www.nejm.org/doi/full/10.1056/NEJMhpr1405667