May 3, 2011
Maher on Opt-In Federalism and the Affordable Care Act
Professor Brendan Maher (Oklahoma City University) has posted on SSRN a draft of his article The Benefits of Opt-In Federalism, which is forthcoming in the Boston College Law Review. Here’s the abstract:
The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.
Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.