Tuesday, November 11, 2008
Zelinsky on Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco
Ed Zelinsky (Cardozo) has posted on SSRN his forthcoming piece in State Tax Notes: Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco.
Here is the abstract:
The Ninth Circuit's recent decision in Golden Gate Restaurant Association v. San Francisco saves the employer mandate of the San Francisco ordinance from ERISA preemption by slighting the language of the statute and by misapplying the U.S. Supreme Court's existing case law under ERISA Section 514(a). If (as is likely) the Supreme Court rules upon the ERISA status of employer mandates like San Francisco's by adhering to its past decisions, the Court will strike such mandates as ERISA-preempted. Under current law, the Ninth Circuit's opinion in Golden Gate II is not sustainable.
Although I think Ed's critique is probably consistent with the traditional way of interpreting ERISA preemption, I have argued elsewhere that the majority's reasoning in this case which focuses on the "presumption against preemption" in matters of traditional state concern per Travelers is more apt in this case.
I guess we shall see.