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 may in part 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 the 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.
Brendan S. Maher, The Benefits of Opt-In Federalism, 52 B.C.L. Rev. 1733 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss5/4