Tuesday, 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.



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