Supreme Court Asks for Solicitor General's Views on ERISA Preemption and San Francisco Universal Health Plan

As part of its orders yesterday, the U.S. Supreme Court asked the solicitor general to file a brief expressing the view of the federal government on whether the Employee Retirement Income Security Act (ERISA) preempts the San Francisco ordinance which sets up the Healthy San Francisco plan.

That plan requires medium and large employers in the city that are not providing more generous benefits to make minimum health care expenditures on behalf of covered employees, either into the employer's benefit plan or a city-administered health care program

The case is Golden Gate Rest. Ass'n v. San Francisco, U.S., No. 08-1515, and has been written about on this blog before here, here, here, here, and here.

I am especially interested in seeing how General Kagan and the DOJ handle this case. While there are arguments why we should let states be laboratories of experimentation in the health care financing context, the controlling ERISA preemption law arguably might require a preemption finding. 

For my part, I find the Ninth Circuit panel decision in Golden Gate to be more consistent with the modern preemption doctrine first enunciated by the Court in the Travelers decision and which holds that there should be a presumption against preemption in areas of tradition state concern (like the health of its citizens).

PS