Amy Traub
Who is Erisa, and why won’t she let me see a doctor?
One of the most maddening aspects of the nation’s current financial crisis is how many people saw the problems brewing, but were prevented from doing anything about it. Dozens of states acted over the years to ban the predatory lending at the heart of the mortgage crisis, only to have their laws pre-empted by the federal government. As Progressive States Network explains, the Federal Reserve both failed to implement federal legislation intended to rein in predatory lending and insisted that the existence of the federal law meant states couldn’t act on their own. Today we’re living with the results.
And we’re seeing something similar happen with health care. In 2006, Maryland passed a law requiring the state’s very largest employers to provide their employees with health coverage or pay into a state health fund. The law targeted Wal-Mart, which was raking in profits even as it advised employees to rely on the state Medicaid system for their medical needs. Courts struck down Maryland’s Fair Share for Health Care law arguing that it conflicted with ERISA, the federal law governing health and retirement plans. A similar thing happened in Nassau County, New York. Washington isn’t solving the nation’s health care crisis, but it is blocking states and cities from acting on their own.
But on this front we get a bit of good news in an otherwise gloomy week: a Federal Appeals court overturned a lower court ruling against San Francisco’s pioneering health plan.
The new verdict? Healthy San Francisco, which requires businesses with more than 20 employees to provide health coverage to employees or pay into a city fund that provides medical care at public and private hospitals does not violate ERISA. That means 25,000 San Franciscans who used to be uninsured can continue getting health care and the city can continue its efforts to sign up more residents. (For a really in-depth look at the city policy, click here) The ruling provides support for other states and cities to demand employer support for their own health plans. In the meantime, the Golden Gate Restaurant Association, which opposes the bill, may appeal all the way to the Supreme Court.
On health care, the real solution is federal action, not a patchwork of state and city laws. But whether it’s fair lending, health coverage, or regulations of dangerous consumer goods, the least we can do is give local governments the ability to solve problems where the federal government won’t. That means stopping the pre-emption of state and local laws except where Congress specifically states that pre-emption is intended. DMI Civil Justice Fellow Kia Franklin has more to say on that.
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Posted at 3:02 PM, Oct 02, 2008 in Cities | Civil Justice | Health Care
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I think this essay and the one by Kia Franklin it links to
oversimplify a complex problem. Federal preemption of state law is not, in and of itself, good or evil. Instead, it's a principle to prevent patch-work state-by-state social solutions where Congress has acted to create a national scheme.
Congress has been in the hands of extreme right-wing Republicans for 14 of the last 16 years. In many places, progressives have turned to state legislatures to address social crises where Congress -- devoted only to the welfare of the wealthiest -- has declined to act. That strategy has significant weaknesses one of which has been to subject a string of state initiatives to veto by Federal Courts. The fault lies less in our courts than in our political weakness in Congress. (It is course possible, current polls seems to tell us, that this weakness may soon end.)
Now that a significant progressive majority seems immanent. it would be a mistake -- in my view -- to support a statutory limit on federal preemption. That would only create a safe harbor for right-wingers in those few states where, in the new year, they'll retain political sway.
I suggest, therefore, better crafted state solutions to, for example, the lack of health insurance than those proposed for NY & MD and more political action to make national health insurance solutions less wishful and more feasible.
Posted by: Daniel Millstone | October 2, 2008 05:57 PM
I appreciate your thoughtful response, Daniel. However, I believe state and local innovation will always have a role to play no matter how progressive Congress may be. The history of states as "laboratories for democracy" extends far beyond the most recent period of conservative domination in Congress, after all.
Of course, there's also a dark side to state legislation -- we can't forget Jim Crow segregation. One way to ensure that a federal preemption statute doesn't "create a safe harbor for right-wingers" in state governments as you warn would be for federal law to explicitly create floors but not ceilings for state and local action to protect consumers, workers, and the environment. Federal minimum wage law is a good example of this approach.
I would never argue against more political action to make national health insurance solutions more feasible, but I would suggest that, rather than more carefully circumscribed state statutes, we need a well-crafted federal law that requires Congress to state explicitly when and under what circumstances it intends federal legislation to preempt state law. A Congress with the progressive majority you foresee should have no problem creating workable floors without bricking up the ceiling.
Posted by: Amy Traub | October 3, 2008 03:12 PM