Maher on the Benefits of Opt-In Federalism

Brendan S. Maher (Oklahoma City University School of Law) has posted on SSRN his forthcoming piece in the Boston College Law Review: The Benefits of Opt-In Federalism.

Here is 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.

A timely, relevant and innovative employee benefits piece that anyone interested in the debate over federal-state relations or questions swirling around the new health care reform law should be sure to read.

PS