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.
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.
Continue reading “Hills on Local Democracy and ERISA Preemption”
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.
Continue reading “Laboratories of Democracy at the Local Level”
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). Continue reading “Seventh Circuit Week in Review (With a Brief Digression on Criminal Justice Federalism)”
Paul Secunda has a new pair of working papers on SSRN, entitled “The Ironic Necessity for State Protection of Workers” and “More of Less: The Limits of Minimalism and Self-Regulation.” These are his opening and closing statements in a debate with Jeffrey Hirsch for PENNumbra. Paul takes the position that the federal government is doing a poor job of protecting American workers, noting a lack of capacity or will to engage in robust enforcement of statutes likes the National Labor Relations Act and the Occupational Safety and Health Act. As a result, he would like to see states play a more active role in workplace regulation.
These short papers touch on an important, longstanding debate in federalism theory: whether each field of social regulation ought to be handled exclusively at a particular level of government (federal, state, or local), or whether shared responsibilities ought to be the norm. The exclusivity model was dominant through much of this nation’s history, but was almost entirely supplanted in the middle decades of the last century by a cooperative federalism model. As someone who worries a lot about transparency and accountability in government, I confess to some unease about the opaque, complex federal-state-local arrangements that now predominate in nearly every major field of public policy (environmental protection, crime, health care, education, housing, transportation, etc.). On the other hand, if the mechanisms of democratic accountability do not operate well, the exclusivity model can lend itself to agency capture, bureaucratic inertia, and regulatory stagnation–which is (I take it) how Paul would characterize the present state of federal labor and employment law.