For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

Writing at Mirror of Justice, Rob Vischer responds, arguing that health care is different, perhaps falling into that category – identified by John Paul II in Centesimus Annus - of the “needs and common goods that cannot be satisfied by the market system.”

I am in partical agreement. There is nothing about health care that, in and of itself, frustrates the operation of markets. It is not a natural monopoly and there are no intrinsic externalities or “tragedies” of the commons.

The problem, it seems to me, is that health care is like food. There are many goods that people can do without, but some are necessary for survival. We are reluctant to allow people to starve and we don’t want to simply allow those who get sick to die.

This does, I think, require public and private intervention in the market. My suggestion is that considerations of subsidiarity suggest that increases in subsidies may be preferable to increases in centralized control of the provision of services.

Although there are many interesting provisions in the Baucus Bill, including a requirement that individuals have health insurance coverage, the establishment of a health care exchange, proposed reforms for the private insurance system including not allowing exclusions for preexisting coverage, and expansion of the Medicaid program for the poor, I want to focus on three parts that trouble me that directly deal with current employee benefits law. 

First, the plan does not adopt a public option for health care.  Instead, it establishes state-based cooperatives to compete with private health plans.  I think this a huge mistake and such coops will be a failure from the start.  For the best explanation as to why, here is former Labor Secretary Robert Reich explaining why the public option is so superior to co-ops.

Perhaps even more disappointing from my perspective is that the Baucus Bill does not require employers to provide coverage to workers, like some of the House counterpart bills.  Instead, employers with more than 50 workers who do not offer coverage will have to reimburse the government for each full-time employee receiving a health care affordability tax credit in the exchange starting in 2013.

Two thoughts on this one. One, there is no reason to limit this to employers with 50 employers with more. That is the cutoff currently for the Family and Medical Leave Act, and it has left a huge number of workers without leave protection.  Similarly, this arbitrary cut-off will continue to leave millions of workers at smaller employers without health coverage. As long as we are going to stick with our unique employer-provided coverage, we should make sure all employees can get coverage through their employers.  The only other options is for these people to qualify through some other government program like Medicare, Medicaid, or Social Security.  Yet, those programs do not provide the necessary and timely health treatment that many employees need.

Second, why does this not start until 2013?  Assuming the bill passes in 2010, why should a vast number of workers suffer at these larger companies without healthcare?  Or put at little more forcefully, how many employees will die in those three years from that delay in providing coverage.

Needless to say, I sure hope that these two provisions are not in the health care reform bill that President Obama eventually signs into law.

The text of the bill, America’s Healthy Future Act of 2009, is available here.

Here’s a taste:

TWO burning questions are at the center of America’s health care debate. First, should employers be required to pay for their employees’ health insurance? And second, should there be a “public option” that competes with private insurance?

Answers might be found in San Francisco, where ambitious health care legislation went into effect early last year. San Francisco and Massachusetts now offer the only near-universal health care programs in the United States . . . .

[W]e have seen how concern over employer costs can be a sticking point in the health care debate, even in the absence of persuasive evidence that increased costs would seriously harm businesses. San Francisco’s example should put some of those fears to rest. Many businesses there had to raise their health spending substantially to meet the new requirements, but so far the plan has not hurt jobs . . . .

So how have employers adjusted to the higher costs, if not by cutting jobs? More than 25 percent of restaurants, for example, have instituted a “surcharge” — about 4 percent of the bill for most establishments — to pay for the additional costs. Local service businesses can add this surcharge (or raise prices) without risking their competitive position, since their competitors will be required to take similar measures. Furthermore, some of the costs may be passed on to employees in the form of smaller pay raises, which could help ward off the possibility of job losses. Over the longer term, if more widespread coverage allows people to choose jobs based on their skills and not out of fear of losing health insurance from one specific employer, increased productivity will help pay for some of the costs of the mandate.

In case you think this is all a bunch of liberal, Democratic mishigosh, one of the authors of this op-ed happens to be non-other than William Dow, a senior economist who worked for President George W. Bush’s Council of Economic Advisers.

In other words, increasing evidence is out there that health care reform with a public option and an employer pay or play mandate might be just what our system needs to rein in health care costs while at the same time providing health insurance to a much larger segment of American society.

[Cross-posted on Workplace Prof Blog]

  We are very far removed from the time when the residents of a small New England town could gather together on an occasional basis and make communal decisions that governed their daily lives.  Today, members of congress are expected to use these forums to report back to their constituents, to answer questions and solicit concerns, and then to return to Washington, D.C. with a greater sense of the priorities of the voters.  This is not exactly direct democracy in action, along the classic New England model, but it is the closest that most of us can claim to actually participating in the machinery of our own government.

 At many of these town hall meetings, ostensibly intended to address the topic of health care reform, the proceedings have been anything but an exemplar of participatory democracy.  I am not referring to the “exaggerations and extrapolations” of the pending health care reform legislation that some attendees and some Republican opponents of the bill have espoused.  Trying to prove that something is a lie is like chasing your tail.  The task of separating truth from fiction is simply a never ending part of the human condition.  Nor am I particularly concerned over the shouting and the ill manners of many attendees.  I cannot think of any period in our nation’s history when politeness was the norm in political debate.

 Instead, my concern is with the future of democracy itself.  In 1922, in his book Public Opinion, Walter Lippmann presented a pessimistic view of the public’s ability to govern itself through our nation’s democratic process.  Three years later, he followed up his critique in the book The Phantom Public.  If anything, the sequel held out even less hope for the meaningful participation of the general public in the shaping of the government policies that have such a dramatic impact on their lives.

 Ideologically, Walter Lippmann was a difficult person to pigeonhole.  He began his journalistic career as an avowed liberal, and over his long life he supported and advised presidents of both political parties.  After his death, his books were reprinted by the “Library of Conservative Thought.”  He was Jewish, but he embraced the concept of natural law and wrote admiringly of the moral authority of Catholicism.  Ronald Steel, in his magisterial biography Walter Lippmann and the American Century, points out the “deep vein of conservatism running through [Lippmann’s] brand of liberalism.” (Steel, p. 233).

 Here is how Steel summarizes Lippmann’s central critique of the modern political process:

 Political science [had previously] focused on how decisions were made – by political parties, voting, the branches of government.  In Public Opinion, Lippmann went behind such mechanics to scrutinize the centerpiece of democratic theory: the ‘omnicompetent citizen.’  That theory assumed that the average citizen, being rational, could make intelligent judgments on public issues if presented with the facts. . . .

  Now, however, [Lippmann] had to abandon that faith. . . .  People see what they are looking for and what their education and experience have trained them to see. ‘We do not first see, and then define, we define first and then see,’ Lippmann wrote.  Since no man can see everything, each creates for himself a reality that fits his experience, in effect a ‘pseudo environment’ that helps impose order on an otherwise chaotic world.  . . . 

 Steel goes on to explain the connection that Lippmann made between his insights about human nature and the mechanical operation of the political process:

 . . . For most people, the world had become literally ‘out of reach, out of sight, out of mind.’  This posed no serious problem in a small community where the decisions each citizen had to make rarely went beyond what he could directly experience.  This was the world that the eighteenth-century fathers of democratic theory had written about.  But modern man did not live in that world.  He was being asked to make judgments about issues he could not possibly experience firsthand: the tariff, the military budget, questions of war and peace.  What was reasonable in a Greek city-state was impossible in a modern technological society.  The outside world had grown too big for the ‘self-centered man’ to grasp.  This posed a political dilemma, for classic democracy ‘never seriously faced the problem which arises because the pictures inside people’s heads do not automatically correspond with the world outside.’  They did not correspond for a number of reasons—stereotyping, prejudice, propaganda.  The result was to erode the whole foundation of popular government. . . .

 . . .  The Enlightenment conception of democracy—based on the assumption that every man had direct experience and understanding of the world around him—was totally inadequate to a mass society where men had contact with only a tiny part of the world on which they were being asked to make decisions.  What was possible in an eighteenth-century rural community was unworkable in great cities.  

Steel, pp. 180-182.

 Lippmann concluded, therefore, that the general public was incapable of directing the course of events on any rational basis and that it was folly to attempt this.  At best, the public had the ability to identify those persons or groups who were capable of making important decisions by either voting them in or out of power.  It is not so much that the members of the general public lack competence, it is that the general public lacks sufficient information with which to exercise any sort of rational thought process.

 Lippmann’s theories gave rise to the entire industry of public relations, they revolutionized the concept of advertising, and they greatly influenced every interest group who has since sought to influence the public’s desires and beliefs by “putting pictures in our heads.”  All of these forces in our society eschew rational argument in favor of molding opinion through the use of the symbols and the stereotypes that they believe the general public uses to understand reality.

By and large, the Republican Party has embraced Lippmann’s theories of political science more than the Democrats.  When Gary Wills wrote that Ronald Reagan asked the public to “reject historical record for historical fantasy” (Innocents at Home p. 387), or Henry Fairlie charged that Reagan offered voters an “escape from the present to the idyllic past” (Bite the Hand That Feeds You, p. 190), they were both marveling at Reagan’s ability to glide above the facts and connect with voters on a symbolic level.  One can interpret the political rise of Sarah Palin as a similar achievement.

 The Administration of George W. Bush unabashedly employed Lippmann’s theories of politics.  When reporter Ron Suskind quoted a senior advisor to President Bush speaking dismissively of the “reality-based community,” which embraced the illusion that solutions to problems arise from a study of discernible reality, the advisor was channeling Lippmann.  ”That’s not the way the world really works anymore,” the advisor told Suskind. “[W]hen we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”  The main political sin of George W. Bush was not his attempt to manipulate reality, but his failure to successfully hide what he was doing.  

 While Lippmann’s genius has been universally recognized, there has always been a large contingent of liberals and progressives who have rejected his pessimistic conclusions.  For decades, they chose to focus instead on the expansion of the coalition of democratic interest groups– through the addition of women, minorities and the gay and lesbian community– as the key to enacting liberal legislative reforms.  More recently, liberal elements within the Democratic Party have seized upon technology, and the internet, as the key to building broader support for their agenda.  The “Great Health Care Debate” may finally convince these doubters that Lippmann was right all along.

 The town hall meeting experience demonstrates that many liberals continue to cling to the idea of an objective reality.  The Obama Administration approached the issue of health care reform as a process of rational decision-making, where a variety of interest groups would reach an accommodation based upon mutual self-interest.  While President Obama did not initially plan on using town hall meetings in order to promote health care reform, no one in his Administration seemed overly concerned over the prospect of the general public weighing in during the congressional recess.  Lo and behold, when the views of many of the attendees at the town hall meetings were solicited, these views revolved around death panels and the fact that any form of government sponsored health care is inherently evil (unless it is offered by Medicare or the Veterans Administration, both of which are sacrosanct).

Health care reform is too complicated an issue for any lay person to understand.  As a result, the general public falls back on the pictures in our heads to make sense of it all.  This facet of human nature makes us all vulnerable to powerful groups who gain and hold on to their power precisely because they are exceedingly good at creating those pictures.  Lippmann also recognized that when government policy gets too complicated for the average person to understand, it risks letting loose “all the submerged antagonisms within the state.” (Steel, p. 227). 

Corporate America, in contrast to the general public, participates in the legislative process quite successfully via the lobbying process.  It can afford to hire specialists with the knowledge and experience to direct legislative priorities and to influence the votes of legislators.  Without any real competition from a general public seeking to advance its own interests, it is clear that the legislative process has been captured by corporate interests.  Reform measures intended to address this imbalance, either by decreasing corporate influence through limits on campaign contributions or by increasing lawmaker independence through redistricting efforts, are too complicated themselves for the general public to understand.  If the general public cannot think rationally on the question of health care reform, what hope is there that it can rationally address a reform of the political process itself?

The fundamental question is whether we still have the capability to govern ourselves or whether we the people are destined to have our fates determined by elite interest groups.  Lippmann thought that the modern world was too complex for the former alternative.  He placed his hope in the education and morality of the elite, confident that they would act for the common good and not selfishly.  If that is where our nation’s best hope lies, then I am truly depressed.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

Reflections of a 3L, Installment One: Put Down That Book and Go To the Gym; or, Yes, You Do Have Time.

The more you move your body, the more energy you have to move your body.  Exercise introduces endorphins into your system that make the daily grind seem smoother.  And my mother swears – though I’m pretty sure she’s making this up – that your body will grow new blood vessels to your brain if you exercise on a regular basis.  As my fellow 3L Staci Flinchbaugh put it, there is just no downside to exercising.  Not that I’ve been doing it much during law school.  Ok, at all.   I haven’t been exercising at all.  There was never a time when I decided, “Ok, absolutely no more physical activity for me aside from pack-muling these books to and from class.”  It just happened by increments.  Not today, I have that brief due.  Not today, I am super far behind in my reading.  Etc.  I even signed up for a Pilates class my first semester.  Alas, my attendance was short-lived.  And it likely resulted in a group of undergrads who still discuss the weird woman who came to Pilates and kept falling asleep on the mat.  

In retrospect, though my reasons for not exercising didn’t seem like excuses, they were.  Law school is stressful.  It’s also expensive.  Job hunting is stressful as a rule.  But we’re in an economy where the lead banner on the American Bar Association’s website has a picture of dollar-bill George Washington sporting a black eye, seated next to the declaration that we are in a LEGAL RECESSION.  (Yes, really.)  I may be an extreme case, but I do think it fair to say that as far as law students go, our type-A personalities, our dedication to excelling in our chosen field, and our loans engender in many of us the belief that we simply don’t have the time to do anything but work on making law school work.  If we don’t have time to sleep, then how do we have time to go to the gym?  Obviously we want to make the most out of our time here; but, I fear that we forget that the habits we enter into in our time in school are likely precursors to the habits we will maintain as practicing attorneys.  And my best guess is, the stress isn’t going to go away.  Soon there will be real people whose real lives will depend on our performance.  If we don’t have habitual coping mechanisms in place, what are we going to do?  The statistics do not paint a pretty picture.

Lawyers are not a healthy bunch.  Attorneys as a group have epidemic depression.  (Don’t think so?  Well, the problem has its own website.  Check out www.lawyerswithdepression.com.)  There is also an incredibly high incidence of alcoholism in our field.  According to the Legal Profession Assistance Conference, about a quarter of us are alcoholics. These are factors that speak of a community that does not cope well with the large amounts of stress we endure.  My point is, the oft-mentioned, rarely-explicated “work/life balance” probably includes you moving your well-educated self around more than you currently do.  

How do I know?  Let’s just say I recently realized that there’s me and there’s my 2L interview suit and nevermore the twain shall meet, and leave it at that.  So I started dragging myself back to the gym.  (Note: step aerobics is NOT like riding a bike.  You DO forget how.)  I tried, as a week-long experiment, treating workouts like they were my absolute top priority.  I went every day.  And, wouldn’t you know it, my energy went up and my stress went down.  It actually seemed like there was more time in the day.  It seemed like the things that normally tend to irk me were decidedly less irksome.  And I am not completely lost in all my classes.  Actually, I’m not even behind.  I just took note of those times during the day where I had scheduled in “work on X” but knew I would not be working on X, but rather perusing facebook or watching trashy T.V., because I would be too mentally exhausted to work on X.  Instead I scheduled “go to gym.”  Now, do I think I will keep up the every day regimen for the rest of the year?  No.  I will not.  And yes, that will still be me you see shamelessly taking the elevator every time I have to go to the third floor.  But the success of my experiment brought home the fact that at many points throughout school I have given myself the false choice between taking care of myself and taking care of my school work.  This is not a choice I can habitually make and be a healthy lawyer.  

We have the time to take care of ourselves, because we don’t have the time not to.

WPRI has now published a study evaluating the probability of such migration. I have not yet carefully examined it, but I continue to believe that such migration (and the Supreme Court precedent that protects it) is a serious obstacle to state efforts to enact some form of universal health care and, for that matter, a variety of other initiatives that states may undertake in their once honored roles as “laboratories for democracy.”

Cross posted at PrawfsBlawg and Shark and Shepherd.

His post takes off from the recent ERISA preemption case of Golden Gate Restaurant Association, in which the Ninth Circuit recently held that a San Francisco ordinance demanding employers provide health benefits is not preempted by ERISA.  This holding is contrary to many of the cases in this area (and critiqued by ERISA luminaries like Ed Zelinsky) and the case is currently being considered for en banc review.

Here’s a taste of Rick’s insights:

San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments. As a matter of policy, I tend to agree that funding public benefits like health care through mandates on employers is foolish. Such a finance mechanism interferes with the mobility of labor and discourages job creation. Far better, it seems to me, to provide health benefits through general taxes not incident on employment.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber.

Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the ‘burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one’s local branch complies with the local complying health care law is close to zero . . . .

For those who care about ERISA, why do I claim that preempting San Francisco’s ordinance is madness? The Restaurant Association is essentially making an effects-based preemption argument, asserting that SF’s ordinance effectively requires employers to change their ERISA benefits plans to comply with San Francisco law. The folly of this argument, however, is that it proves too much: Lots of local laws might have effects on employers’ incentives to provide contractual benefits. Medical malpractice lawsuits under state tort law might drive up the cost of insurance, leading the marginal employer to reduce employees’ health care benefits. Local zoning law could — indeed, does — increase housing costs, which increases the relative attractiveness of housing benefits to employers. But no lawyer in their right mind would argue that these state and local laws “relate to” ERISA benefits plan, because these laws’ obligations are not triggered by the existence of ERISA-covered employment benefits . . . .

Any other theory will draw the courts into a theory of preemption that could suck every state and local regulation of business into the maw of ERISA preemption — an outcome utterly unintended by anyone in Congress in the 1970s, when ERISA was enacted. For courts to create such centralization without Congress’ assent is, as I noted above, an outrage against common sense and subnational democracy. As I have argued elsewhere (Against Preemption: How Federalism Can Improve the Federal Legislative Process, 82 N.Y.U. L. Rev. 1 (2007)), ERISA preemption has also absolved Congress of the duty to confront the problem of how health care benefits relate to employment. Preemption, in short, destroys both subnational and national democracy . . . .

Although I have not agreed with Rick on other topics like the manner in which public pensions have contributed to NYC’s fiscal crisis, I think he is right on here.  From a more technical ERISA standpoint, I wrote on the Ninth Circuit opinion back in October:

I am now persuaded that the 9th Circuit’s ruling [in Golden Gate] is consistent with the Travelers precedent from 1995 that unless a law is historically a matter of local concern, there should be a presumption against finding ERISA preemption. It seems to me that courts have read ERISA incorrectly in this regard in past cases.

My epiphany came in writing my new paper on the intersectionality of ERISA preemption and remedial provisions.  In order for many plaintiffs not to be deprived of the remedy that they deserve, the preemption provision must be strictly construed according to the language in Travelers.  This reading will ensure that defendant employers are not able to inappropriately use ERISA as a shield against meaningful health care reform or appropriate types of relief in ERISA cases.

Rick argues for a more limited ERISA preemption doctrine based on federalism principles, and I argue for the same limited doctrine based on the employee-oriented, remedial nature of the statute, but we come out in the same place.  I am with Rick in that I hope the en banc Ninth Circuit understands the compelling arguments that abound to allow local municipalities to democratically decide what responsibilities employers in their jurisdictions have for providing their employees with health care benefits.

My thought is that if we allow federalism to flourish in this context, many jurisdictions will force Congress’s hands to reconsider how to protect benefits for employees under ERISA.

The Milwaukee Journal-Sentinel reports:

Employers would have to grant 72 hours of sick leave per calendar year or 40 hours if they have fewer than 10 employees.

Although the ordinance is due to take effect in about 100 days, the Metropolitan Milwaukee Association of Commerce has filed notice that it intends to legally challenge the law on the grounds that (1) it is inconsistent with federal and state laws for family and medical leave; and (2) oversteps the city’s authority to require sick pay from employers outside the city that have employees living in Milwaukee.

I am no expert on the second issue, but the first ground of challenge seems utterly without merit.  The federal FMLA and state leave law provide a floor under which no law may go, but states and municipalities have always been free to be more generous, and, in this case, provide some paid leave to workers.  The fact that the business group believes the ordinance will cause them economic harm is not grounds for setting the ordinance aside.

I am hopeful that the court deals quickly with this matter so that the ordinance can go into effect when scheduled and start providing much-needed relief for the workers of Milwaukee when they become sick.

As a national debate over the future of the nation’s health-care system swirls, a new report from a liberal think tank indicates fewer working-age Americans, including Ohioans, are being covered under employer-sponsored health plans.

A briefing paper from the Washington, D.C.-based Economic Policy Institute, titled The Erosion of Employer-Sponsored Health Insurance, shows employer coverage for workers and their families dropped for the seventh consecutive year. About 63 percent of Americans, or 164.5 million, under age 65 were covered in 2007, about 3 million workers fewer than in 2000, during which about 68 percent were covered.

Employer-sponsored insurance coverage for working-age Ohioans fell at a similar rate over the decade. Last year, 6.8 million Ohioans, or nearly 69 percent, were covered by their employers, down more than 400,000 from 7.2 million, or 74 percent, six years earlier.

To the extent that employers are seeking to cut labor costs by pulling out of voluntarily adopted health benefit plans, there could be a domino effect which neither presidential candidate has grappled with: the demise of the employer-provided health insurance system in this country.

There will be two potential approaches that could result: an amendment of ERISA to require employers to provide manadatory health plans or a switch to a government-based system (one way would be to expand Medicare and Medicaid-type coverages to the entire nation). After having studied what a number of countries have done in preparation for my forthcoming, co-authored case book on Global Issues in Employee Benefits Law, I am of the opinion that a hybrid system would be best. Such a system would provide a base-level coverage for all Americans through the government and then additional coverage and services could be provided through mandatory employer-provided coverage.

Cross posted at Workplace Prof Blog.

Note: The one-hour Turner Hall 4^th St Forum on health care, taped last Thursday, is available as a podcast. The panel included Bill Jenkins, who has extensive experience as a leader with Aurora; George Lightbourn, public policy wonk and former Secretary of the Wisconsin Department of Administration; and David Newby, President of the Wisconsin AFL-CIO. And me, of course.

The differences between the McCain and Obama proposals are far greater than any past candidates. Obama presents a development or variation on the Clinton/Gore/Massachusetts plans that seek to spread risk and coverage. McCain takes health care coverage in a completely different direction. Below, I line up the elements, including major changes, sources and extent of coverage, cost containment, and extension of coverage to the uninsured.

There are other issues, including management of prescription drugs (e.g., both candidates favor reimportation, suggesting they expect to lose a battle with big pharma). McCain advocates broader approval and use of generics, which has its upsides and downsides in a pharma benefit management environment.

If you got so far, here are the specifics I deem most relevant to your thinking. I seek to make the comments parallel, so you can print and compare if you want.

McCain’s Proposal

This plan seeks to end employer-based benefits, viewed as a burden on U.S. business.

System Changer

* End the employee tax exclusion for health care benefits, which means that people who have employer-based coverage will pay tax on the cost of their health care coverage. An end of employer benefits is NOT mandated, but it is likely to happen over time if the model is implemented.

Comment: The tax structure makes this progressive, since affluent people will pay for the benefits at a higher tax bracket.

* Encourage private (rather than employer or group) purchase of health care coverage.

* Corollary to that change, deregulation of the insurance market so health insurance can be freely sold nationwide without state approval and state mandates.

Comment: Under this plan I could buy a cheaper policy because I don’t need certain benefits (maternity!). Collecting on such policies is notoriously difficult, however, and the insurance company profits are probably increased to 40%+ for administration and advertising.

Finance and Coverage

* Tax credit of $2,500 individual/$5,000 family that can be used only to purchase coverage.

Comment: This is not enough for any family policy except high deductible, high co-payment. Individuals will need to contribute their own money, so those with little to spare are unlikely to get the credit or any coverage.

* Emphasis on a health savings accounts with tax sheltered funds allocated to health care expenses. Annual limit on the HSA deposit is the deductible for your policy (minimum $1K individual, $2K family with out of pocket limits of $6K and $10K respectively). The account rolls over for subsequent years so more money might be available for copayments and other health care costs as defined by the tax code.

Government assistance

This plan proposes a Guaranteed Access Plan (GAP) funded with federal and state revenues. While details are scant, it looks like Medicaid and would therefore be vulnerable as a welfare plan.

The uninsured

Very unlikely people not currently covered would get covered, except perhaps in states with such low Medicaid eligibility levels that the federal program helps. Unclear.

Obama’s proposal

System changer

Not at the systemic level. This is an incremental plan with a couple of major differences.

Finance

* Employer mandate (NOT an individual mandate, except for coverage of children) with a “pay or play” provision that requires employers to offer insurance or pay a tax into a fund to cover the uninsured. Exceptions and assistance to some small employers.

* Two other options: please see below, the uninsured.

* New payroll tax (perhaps offset by the lapse of tax cuts for families making over $250K).

Comment: We currently pay 1.45% (matched by employer) for Medicare Part A benefits (mostly hospital). Medicare beneficiaries pay premiums for Part B (mostly reduced physician fees), but those premiums cover only a modest portion of the actual cost. The rest is from tax revenues. The drug benefit is similarly subsidized, at about 90%.

Coverage

* End of medical underwriting, eliminating denial for pre-existing conditions and substantially higher premiums once one is sick.

* Universal access, but not a universal mandate that individuals have coverage.

Comment: The Massachusetts individual and employer mandate, renewed this week, increased coverage by 5%+ and leaves about 5% of citizens without coverage.

Government assistance

* If not otherwise covered, a Medicare-model government health plan.

* A private health care plan “broker” along the lines of the Massachusetts “Connector” referenced above. It allows participation if the individual has no other access and makes less than 300% of FPL. Sliding scale, with no premium due under 150% of FPL.

* A reinsurance plan for employers who have a very high cost employee.

Comment: This last is significant detail since the traditional “80% of the benefits go to 20% of the beneficiaries” has changed radically. A huge part of benefits “big ticket” patients, including premature babies and multiple transplant patients. One such patient can founder the plan for everyone.

The uninsured

* More people would be covered. Unclear how many.

* The other elements of our health care coverage, such as inner-city and rural health care clinics are not specifically addressed.

* Cost containment policy is not well developed.