SF's Employer Health Care Mandate Struck Down

you would think (8.00 / 1)

that the woman in whose district this ruling impacts would turn her attention to ERISA reform to allow the states and municipalities to take up the mantle where the federal government has stalemated.

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by: David Dayen @ Thu Dec 27, 2007 at 20:07:12 PM CST

Yes, you would think that (0.00 / 0)

But Pelosi hasn't exactly shown much interest in leadership on anything else now, has she?

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Thu Dec 27, 2007 at 20:15:40 PM CST

[ Parent ]

This combined with the budget deficit (0.00 / 0)

Would seem to pretty much kill reform for '08, I would think.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Thu Dec 27, 2007 at 20:16:32 PM CST

My two favorite things about this (8.00 / 1)

First favorite: courts stepping up and telling cowardly, incrementalist politicians to stop pussyfooting around with this employer mandate nonsense.  Policies like SF's would be unproductive at best, and would have the potential to be pretty counterproductive at worst.  As a San Francisco resident, I have to say I think the plan would have put our fair city at a disadvantage in attracting and retaining employers while doing little to actually care for the health of just about anyone.

So that's my earnest favorite.  But my ironic favorite is this line from, I guess, Chris Reed's piece:

On the other hand, Congress has evinced its intent to preclude state or local governments from passing any legislation that relate to ERISA plans so as to avoid a patchwork of state and local health care programs across the nation.

Yah...right.  Because you know what's really easy to understand and sort through?  the patchwork of corporate-provided health insurance programs across the nation.  What a bureaucratic mess it would be if certain localities had different plans!  Why, it might even result in people being unreasonably denied care, tons of money wasted on administration, or our moral debt to veterans going unpaid.

Yes We Kang

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by: I voted for Kodos @ Thu Dec 27, 2007 at 20:40:18 PM CST

This isn't the final word; it's just the first round... (0.00 / 0)

Let's put this is context (with more detail at www.health-access.org/blogger.html): A George W. Bush-appointed judge struck down a San Francisco ordinance, shockingly siding with restaurants over labor, based on a ambiguous federal law that the judge quotes is a "veritable Sargasso Sea of obfuscation."

Despite the fact that "the task of developing a clear rule to identify whether ERISA preempts a particular state law 'has bedeviled the Supreme Court'", he takes an expansive view of ERISA pre-emption. But even in ruling against San Francisco and the labor unions who intervened, he keeps the door open, and proposes something that could pass muster:

He then describes the very structure in SB2/Prop 72 of 2004, and what is essentially what is expected to be in the financing of AB x1 1: Assess all employers, but provide a credit/reduction for those who make health expenditures directly for their workers.

It's unforunate that it will impact San Franciscans trying to get care, at least until the appeal. But it shouldn't impact state efforts, whether for AB x1 1 or SB840, and might even offer an opening...

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by: awright @ Thu Dec 27, 2007 at 21:20:43 PM CST

The permalink for the post noted above (0.00 / 0)

http://www.health-access.org/2...

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by: jsw @ Thu Dec 27, 2007 at 21:43:54 PM CST

[ Parent ]

At the least (0.00 / 0)

The state plan includes an employer mandate that would be overturned by this ruling.  Thus it would take another round of court rulings with this particular ruling being overturned in order to get the state plan into action.  It's possible but at best it's a long ways off.

I'm proud to work for Barbara Boxer

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by: Lucas O'Connor @ Thu Dec 27, 2007 at 21:58:56 PM CST

[ Parent ]

Also (0.00 / 0)

We should point out that it would really not shock anybody to see this decision overturned by the 9th circuit. ERISA law is justly described by Judge, and the jurisprudence is not a whole lot clearer.

I'm proud to work for Kamala Harris for AG.

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by: Brian Leubitz @ Thu Dec 27, 2007 at 22:51:12 PM CST

[ Parent ]

And when the 9th gets appealed to the SCOTUS (0.00 / 0)

What then?

I don't see how relying on the courts to bail out this health care reform plan is a wise strategy.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Fri Dec 28, 2007 at 10:28:07 AM CST

[ Parent ]

No, you're right. (0.00 / 0)

It's a tough question of law that could go either way in any court.

But, the fundamental problem here is ERISA. It's been so wildly construed by the courts because it was a trash heap of legislation. We need to reform, or better yet, totally start anew with ERISA to find solutions that will enable states to take up the cause of health care if the federal government is not.

Either way, any reasonable reform of ERISA seems stalled until we get Bush out of the White House.

I'm proud to work for Kamala Harris for AG.

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by: Brian Leubitz @ Fri Dec 28, 2007 at 10:38:38 AM CST

[ Parent ]

There's also the Maryland case (0.00 / 0)

I'm not a lawyer, and I have no doubt Brian and Anthony are correct in saying that the jurisprudence on this isn't clear. But there appear to be trends and precedents that should worry us. Earlier this year a federal appeals court (4th Circuit) threw out Maryland's employer mandate:

The court said, "Because [the Act] effectively requires employers in Maryland covered by the Act to restructure their employee health insurance plans, it conflicts with ERISA's goal of permitting uniform nationwide administration of these plans." The state argued that the Act imposes a payroll tax and then offers a credit for qualified spending to help pay for the state's medical assistance program, but the court said this was "a stretch." The court found preemption because the Act has an impermissible "connection with" an ERISA plan.

The court reasoned that "the only rational choice" for employers would be to restructure their ERISA plans, and that this was exactly the intent of the state legislature.

That case was brought by a business group fronted and funded by Wal-Mart, and one can assume they and others will try the same here in CA. While the decision in the MD case was more than likely politically motivated, and another law blog - the Workplace Prof - has said that the court's ruling against the SF plan boggles the mind, this isn't encouraging. The 9th hasn't been immune to GOP courtpacking, and an appeal to the SCOTUS is possible if not likely even if the 9th reverses the lower court and upholds the SF plan.

Above David asks, rightly, why Pelosi hasn't come to CA's aid and proposed an ERISA exemption for this reform. I wonder if she has any interest in doing so. Aside from her usual inaction, she might be loath to interfere with presidential reform plans, which would presumably preempt what we're attempting to do here in CA.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Fri Dec 28, 2007 at 10:36:14 AM CST

From that link (0.00 / 0)

I still haven't read the whole decision, but the key point of the post you linked to about boggling the mind is this quote:

It still boggles the mind that the court comes to these conclusions, while still recognizing that, "[t]he Supreme Court has also emphasized more generally that the 'principal object of the statute [ERISA] is to protect plan participants and beneficiaries,'" Boggs v. Boggs, 520 U.S. 833, 845 (1997), not to ensure national uniformity or lower costs for employers to run such plans.

So, the Supreme Court (rightly) said that ERISA was enacted to protect pensioners and insureds, not the employers. Yet, preemption, which is rapidly become the Bush judiciary's Contract Clause in its overuse, is continually used to bludgeon states that attempt to accomplish anything progressive.

The fact is that the Republicans are losing power at the states and are desperately clinging to power in the White House. So they use this law, meant to protect common citizens not corporations, and other consumer rights acts, to say that the federal government is preempting state legislation.

It's clearly not what the Founders had in mind in the drafting of the constitution. But state's rights is clearly an issue that seems to swing on who controls the states and who controls the federal government just dressed up in fancy legal principles.

I'm proud to work for Kamala Harris for AG.

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by: Brian Leubitz @ Fri Dec 28, 2007 at 10:45:44 AM CST

[ Parent ]

Similar principle (0.00 / 0)

involved in the EPA mess.  The notion that there's a vested interest in federally enforcing a national standard.  Which, of course, is pretty ridiculous.  Federally established and supported minimum levels of behavior is one thing, but not caps.

I'm proud to work for Barbara Boxer

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by: Lucas O'Connor @ Fri Dec 28, 2007 at 11:46:02 AM CST

[ Parent ]