Yesterday, the Supreme Court called for the views of the Solicitor General about a certiorari petition filed in Golden Gate Restaurant Association v. San Francisco, 08-1515, which presents the following question:
Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws mandating ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements, a question on which the courts of appeals are in conflict.
The case involves San Francisco’s efforts to expand low-cost (at least to the person covered) healthcare. The Ninth Circuit held that ERISA did not preempt San Francisco’s efforts.
In October 2008 (i.e., under the Bush Administration), the Department of Labor weighed in on whether the Ninth Circuit’s decision conflicts with the decisions of other courts and with ERISA. It filed an amicus brief that reads, in relevant part:
Rehearing en banc should be granted because this case raises a recurring issue of exceptional importance concerning the extent to which ERISA permits recent attempts by state or local governments to require employers to pay for or provide medical benefits for their employees.
As Golden Gate argues, the panel’s contrary decision opens the door to potentially inconsistent state and local regulation of employer-provided healthcare that cannot be reconciled with ERISA’s preemption, in the interest of maintaining a nationally uniform scheme of applicable legal requirements, of state and local laws that mandate employee benefit structures or their administration or that interfere with uniform plan administration. The panel’s decision also threatens intra-circuit uniformity on the nature of ERISA plans and conflicts with preemption principles recognized by the Supreme Court and the Fourth Circuit’s decision in [Retail Industry Leaders Ass'n v.] Fielder[, 475 F.3d 180 (4th Cir. 2007)].
Ordinarily, the SG’s Office would have approved the filing of the Labor amicus brief. It will be interesting to see if the SG’s Office takes a position comparable to that taken by the Department of Labor back in October 2008, or if the views of the Office have changed (assuming it approved the Dept. of Labor brief) with the change of administration.
Lior says:
Erratum: the blog software is replacing the “<" in the HTML tag "<a href=" in the post with the entity reference "<".
October 6, 2009, 8:52 amguy in the veal calf office says:
the panel’s contrary decision opens the door to potentially inconsistent state and local regulation of employer-provided healthcare that cannot be reconciled with ERISA’s preemption, in the interest of maintaining a nationally uniform scheme of applicable legal requirements, of state and local laws
Stated alternatively, the panel’s decision permits experimentation & competition among the various states when Bush’s SG would rather have an exclusive and uniform Federal approach to the provision of medical care.
October 6, 2009, 9:36 amTamerlane says:
There was an article in yesterday’s Boston Globe on Newsome’s San Francisco health care system. Reading between the lines, to me it sounded like everything else the mayor has produced; flashy but lacking substance. By paying a quarterly fee and copayments, eligible participants get access to the same clinic care they could have gotten before the program existed. To achieve this result a large tax burden was imposed on local businesses
October 6, 2009, 10:20 amKazinski says:
Which is exactly what Congress sought to preempt when the enacted ERISA. The whole point of ERISA was to allow companies to create a single health care plan for their employees without dealing with a patchwork of local and state regulations, and thus encourage employers to continue providing health care benefits. A large part of ERISA is safe harbor provisions to keep the cost of offering health care low enough that corporations would continue to provide it.
I’m not sure why the court thinks it’s policy preference should trump Congress’s policy preference.
October 6, 2009, 10:35 amADF Alliance Alert » U.S. Supreme Court seeks Solicitor General’s views in ERISA pre-emption case says:
[...] Volokh Conspiracy: “Yesterday, the Supreme Court called for the views of the Solicitor General about a certiorari petition filed in Golden Gate Restaurant Association v. San Francisco, 08-1515, which presents the following question: ‘Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws mandating ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements, a question on which the courts of appeals are in conflict.’” [...]
October 6, 2009, 10:52 amOren says:
It’s nice that’ you’ve already concluded this, but the live issue is, in fact, whether Congress sought to preempt this when enacting ERISA.
The fact that there is a circuit split on the matter would normally counsel not stating it in a single conclusory sentence.
October 6, 2009, 10:57 amOren says:
Non-substantive question, why does the petition go at lengths to state that Kozinski dissented:
?
As I understand it, the Chief Judge has additional administrative duties w.r.t the circuit, not additional legal weight to his vote. Or is it that Kozinski personally (as distinct from his title of CJ) carries a lot of weight in his opinion?
October 6, 2009, 11:00 amSara says:
“potentially inconsistent” and “threatened non uniformity” don’t seem like very strong claims
October 6, 2009, 11:26 amCvMe says:
Oren: The fact that a judge dissents from a question supports the petitioner’s view that the decision in incorrect. If the judge is well known and considered to be very bright like Kozinski, it adds weight to the dissenting view. If the judge is seen as going against his perceived jurisprudential leanings, it would be even better.
October 6, 2009, 12:16 pmJust Dropping By says:
As I understand it, the Chief Judge has additional administrative duties w.r.t the circuit, not additional legal weight to his vote.
It’s been my experience in the Tenth Circuit that the vote of the Chief Judge is virtually always dispositive on whether or not you can get en banc review. If a similar situation exists in the Ninth Circuit, Kozinski’s dissenting vote could be viewed as having more weight – i.e., the assembled Circuit got the question of whether or not to grant a rehearing “wrong” (which is a separate question from whether the result was correct or not).
October 6, 2009, 12:58 pmsizzix big shot says:
I normally roam all over the ‘net because I have the tendancy to read often (which isn’t always a good thing because the majority of sites just copy from each other) but I must say that yours contains some real substance! Thanks for stopping the trend of just being another copycat site! ;-)
March 25, 2010, 6:21 pm