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.