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The Benefits of Opt-In Federalism
52 Boston College L. Rev. 1733-93 (2011)
  • Brendan Maher, Oklahoma City University School of Law

The Affordable Care Act (“ACA”) is a historic and controversial 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.

  • Choice,
  • federalism,
  • health care,
  • retirement
Publication Date
Citation Information
Brendan Maher, The Benefits of Opt-in Federalism, 52 Boston College L. Rev. 1733 (2011).