Michael Serota, Michelle Singer

Maintaining Health Laboratories of Experimentation: Federalism, Health Care Reform, and ERISA

In this Comment, we demonstrate the ingenuity of San Francisco’s Health Care Security Ordinance and explain why local experimentation with health care solutions is an invaluable component of America’s ongoing efforts to solve the national health care crisis. We then analyze the Golden Gate Restaurant Association’s legal challenge to the Ordinance, which argues that the Ordinance’s employer pay-or-play provision is preempted by the Employee Retirement Income Security Act (“ERISA”). After demonstrating that the jurisprudence surrounding ERISA’s preemption clause is a model of uncertainty and ambiguity, we argue that state and local governments deserve clarity on whether ERISA preempts their pay-or-play laws, and that the political branches are best suited to resolve this issue. We conclude by proposing both legislative and administrative approaches to ERISA reform.