Federalism – Page 14 – Marquette University Law School Faculty Blog

Hills on Local Democracy and ERISA Preemption

Post author:Paul M. Secunda
Post published:December 29, 2008
Post category:Federalism Health Care Labor & Employment Law

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.

Laboratories of Democracy at the Local Level

Post author:Michael M. O'Hear
Post published:November 14, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Federalism Labor & Employment Law Legal Scholarship Milwaukee

Matt Parlow has a thought-provoking new article in print: Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 371 (2008). (A draft can be downloaded here.) Matt contends that the oft-quoted argument of Justice Brandeis (pictured to the left) that states may appropriately serve as laboraties for “novel social and economic experiments” applies equally well — indeed, perhaps even better — to cities and other local units of government. Citing recent immigration initiatives and living wage ordinances (including one in Madison, Wisconsin), Matt notes a long history of local-level policy innovation in this country. He argues,

Because they are smaller in size, local governments are more capable of being responsive to the needs of their respective communities because they are more in touch with their constituents. This leads, in theory, to more responsive and representative policy-making as local government officials make decisions informed by the community’s wants and needs.

In light of these considerations, Matt argues against the tendency of some courts to squelch local initiatives through narrow constructions of home rule powers and liberal invocations of the implied preemption doctrine.

All of this connects nicely to the recent, lively discussion on this Blog of Milwaukee’s ballot initiative mandating paid sick leave for employees. I take it that Matt would be skeptical of arguments that the Milwaukee law is preempted by state and federal law — at the least, his analysis would suggest some good reasons why a court ought to be slow to find preemption.

Seventh Circuit Week in Review (With a Brief Digression on Criminal Justice Federalism)

Post author:Michael M. O'Hear
Post published:October 25, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Federalism Seventh Circuit

The Seventh Circuit issued only one new criminal opinion in the past week. In United States v. Robinson, the defendant’s ex-girlfriend (Evans) reported to a Milwaukee police officer that Robinson had a gun in his home, a charge that was later confirmed after the officer obtained a warrant to search Robinson’s residence. Robinson was then convicted in federal court of being a felon in possession of a firearm. On appeal, he argued that the cop who applied for the search warrant should have disclosed that Evans had recently been charged with disorderly conduct for threatening Robinson with a knife. In Robinson’s view, had the judicial officer known the history of conflict between Evans and Robinson, the officer would have discounted the credibility of Evans’ allegation that Robinson had a gun and declined to issue the search warrant. At a minimum, Robinson argued that he was entitled to a hearing on the matter under Franks v. Delaware, 438 U.S. 154 (1978).