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

Elizabeth Y. McCuskey

Boston University - School of Public Health; Boston University - School of Law

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 )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of Alabama Law School

101 Paul W. Bryant Dr.
Box 870382
Tuscaloosa, AL 35487
United States

Elizabeth Y. McCuskey

Boston University - School of Public Health ( email )

Boston, MA
United States

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
153
Abstract Views
1,005
Rank
362,163
PlumX Metrics