McCormick on the Persistence of Ex Parte Young

The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday.  Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.

In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.

She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.

Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power.  In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.

A lively question and answer session followed Professor McCormick’s talk.   I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.

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Health Care Magnet?

Last January, I published a piece in WI Interest, the journal of the Wisconsin Public Policy Research Institute, arguing that the drafters of Healthy Wisconsin — or any similar program purporting to enact a universal entitlement to health care in a single state — could not constitutionally impose a residency requirement, creating the risk of health care migration and the associated problems of adverse selection. I did not seek to explore whether such migration would occur or who would migrate. I speculated, in fact, that the migrants would not be poor people, but those who are older or high risk.

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.

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Hills on Local Democracy and ERISA Preemption

Hills Rick Hills (NYU), one of the more thought-provoking and provocative thinkers over at PrawfsBlawg, has an interesting post on the interaction between the democratic process and the law of ERISA preemption.

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.

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