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The Benefits of Opt-In Federalism

61 Pages Posted: 30 Mar 2011 Last revised: 14 Nov 2011

Brendan S. Maher

University of Connecticut School of Law

Date Written: March 28, 2011


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.

Keywords: Federalism, Health Care, Reform, PPACA, ACA, ERISA

Suggested Citation

Maher, Brendan S., The Benefits of Opt-In Federalism (March 28, 2011). Boston College Law Review, Forthcoming. Available at SSRN:

Brendan Maher (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States


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