Is the Preemption Clause of ERISA Unconstitutional?

New York University Review of Employee Benefits and Executive Compensation (forthcoming 2019)

34 Pages Posted: 7 Jul 2019

See all articles by Andrew Stumpff Morrison

Andrew Stumpff Morrison

University of Michigan Law School; University of Alabama Law School; Washington University in St. Louis - School of Law

Elizabeth Y. McCuskey

University of Massachusetts School of Law; Center for Health Law Studies

Date Written: July 3, 2019

Abstract

The authors suggest plaintiffs and/or state attorneys general should consider taking Justice Clarence Thomas up on his effective suggestion, in the 2016 Supreme Court case of Gobeille v. Liberty Mutual Insurance, to put before the federal courts the question whether the preemption clause of the Employee Retirement Income Security Act of 1974 (“ERISA”) represented a valid exercise of federal power under the Commerce Clause of the Constitution. ERISA’s exceptionally broad statement of preemption does in fact seem to have unconstitutional reach: It purports to preempt “any and all” state laws that simply “relate to” employee benefits, a formulation without logical boundaries. Furthermore, because the clause currently does, in the main, only harm to the interests of plan participants and public welfare, constitutionally limiting ERISA preemption to conflict or "field preemption” has normative benefits. The new approach would leave ERISA’s protective measures in effect, while opening the possibility of a future in which the states may pursue diverse policies of economic justice and social welfare, reflecting the circumstances and political preferences of their respective populations.

Keywords: ERISA, Preemption, Constitution, Commerce Clause, Field Preemption, Conflict Preemption, Express Preemption, Health Care, Employee Retirement Income Security Act, Federalism, Health Insurance, Gobeille, Clarence Thomas, Rice v. Santa Fe Elevator

JEL Classification: K31, K19

Suggested Citation

Morrison, Andrew Stumpff and McCuskey, Elizabeth Y., Is the Preemption Clause of ERISA Unconstitutional? (July 3, 2019). New York University Review of Employee Benefits and Executive Compensation (forthcoming 2019), Available at SSRN: https://ssrn.com/abstract=3414605

Andrew Stumpff Morrison (Contact Author)

University of Michigan Law School ( email )

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University of Alabama Law School

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Washington University in St. Louis - School of Law ( email )

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St. Louis, MO 63130
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Elizabeth Y. McCuskey

University of Massachusetts School of Law ( email )

333 Faunce Corner Rd
Dartmouth, MA 02747
United States

Center for Health Law Studies ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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