Congress, help on healthcare

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Congress, help on healthcare

Congress must either amend a benefits law so states can fix

healthcare, or solve the mess itself. January 11, 2008

Many unanswered questions remain about the universal healthcare plan

supported by Gov. Arnold Schwarzenegger and Assembly Speaker Fabian

Nuñez (D-Los Angeles). Among the most vexing is whether its

requirement that businesses chip in to help cover the uninsured

violates the Employee Retirement Income Security Act.

On Wednesday, a three-judge panel of the U.S. 9th Circuit Court of

Appeals, ruling on a San Francisco statute, bolstered arguments that

the plan does not violate this federal law, which preempts state

efforts to regulate employee benefits. Proponents of the plan took

heart. But if Schwarzenegger and Nuñez are really serious about

championing healthcare reform in California -- indeed, if policymakers

across the country want states to become laboratories for reform --

they must pressure Congress to amend the law.

The Employee Retirement Income Security Act was written in 1974 to

protect employee benefits -- primarily pensions, but also healthcare.

It includes a preemption clause that stipulates the act should

" supersede any and all state laws " that " relate to any employee

benefit plan. "

The problem ever since, in court case after court case, has been

divining what " relate to " means. Some courts, including the 4th

Circuit Court of Appeals, have interpreted the language broadly.

Others, like the 9th Circuit panel, have concluded that some business

mandates don't merit preemption. The 9th Circuit may stick to its

reasoning when it makes a final ruling on the San Francisco appeal. Or

it may not. The Supreme Court may take it up. Or it may not. Whatever

happens, California's healthcare plan is likely to face legal

challenges from business if it moves forward -- unless Congress

clarifies the act's preemption clause.

A handful of House members, including Reps. E. s

(D-N.J.), Tammy Baldwin (D-Wis.), Tom Price (R-Ga.), F. Tierney

(D-Mass.) and Bob Beauprez (R-Colo.), have started a new discussion of

this law. For many in Congress, the prospect of change is politically

unpalatable -- large businesses don't want to face a patchwork of

benefits provisions and have lobbied for the status quo. But is

amending the act as unpalatable as figuring out how to fix the

country's healthcare system? If states want to try it, Congress should

make it possible for them to do so. If it won't, it must get serious

about drafting its own solutions

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