The Limits of Fair Share

Thomas Nephew raises an important point about the erstwhile Fair Share Health Care law: Just as current federal law on employee benefits (known as ERISA) proved to be Fair Share's undoing in court, so may any attempt to enact universal health care through the states be in jeopardy:

Butler's brief leaves me with the feeling that just about any health care reform law can founder on the shoals of a vague federal ERISA preemption provision, shifting legal interpretations, and individual judicial temperaments... If a clear, fair choice to "pay or play" like Fair Share can be preempted by ERISA, so can any number of other laws.

This is a good point, but it's perhaps reaching to say Massachusetts' or Vermont's health care laws would run the risk of being preempted by ERISA. As I understand the Massachusetts plan, anyway, there's no connection between one's employer and one's health insurance, which was the fatal flaw of Fair Share. Since any health care reform worth its salt, in my opinion, should discard the employer-based health care system (This old column from the American Prospect explains why), I think ERISA won't be a huge impediment to reform in the states.

While we're on the subject, I think Sen. Ron Wyden's proposal for universal health care has a lot of merits to it (Ezra Klein lays out the details). It would do a lot to make health care in America more accessible without radically disrupting the market for health insurance. If it passes, it would pretty much obviate the need for state-by-state reform.

Tags: maryland politics health care