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Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco
Abstract
The Ninth Circuit's recent decision in Golden Gate Restaurant Association v. San Francisco saves the employer mandate of the San Francisco ordinance from ERISA preemption by slighting the language of the statute and by misapplying the U.S. Supreme Court's existing case law under ERISA Section 514(a). If (as is likely) the Supreme Court rules upon the ERISA status of employer mandates like San Francisco's by adhering to its past decisions, the Court will strike such mandates as ERISA-preempted. Under current law, the Ninth Circuit's opinion in Golden Gate II is not sustainable.
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Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care. This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law's mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make "fair and reasonable" contributions to such plans. ERISA also preempts the new law's requirement that Massachusetts residents maintain "minimum creditable coverage" for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees. Employer-provided medical coverage is today central to health care in the United States. ERISA Section 514(a) precludes the states from experimenting with alternative approaches to health care, like the new Massachusetts health law, which impact employer-provided health care. At a minimum, Congress should amend ERISA Section 514 to validate the new Massachusetts health law. More comprehensively, Congress should amend Section 514 to permit all states to experiment with health care reform insofar as such experiments "relate to" employer-provided health care. Ideally, Congress should repeal Section 514 and thus abolish altogether the jurisprudence of ERISA preemption.