3---UNIFORMITY---ERISA only preempts when it threatens state uniformity, which the counterplan doesn’t

Are these tensions reconcilable? Our health care system has always been a regulatory push-pull between federalism and uniformity. ERISA itself is about both. It is about uniformity in the sense of sparing large multi-state employee benefit plans the burden of complying with 50-different sets of state regulations; it is also about federalism in its desire to reserve the regulatory terrain over the everyday regulation of insurance to the states. The ACA, on the other hand, is about uniformity and federalism in almost the opposite way. The ACA’s long-term vision is universal, equal health care, whereas ERISA divides the world of health plans into parts. And the ACA’s federalism is not about divvying up the terrain of health care into state and federal domains. Instead, the ACA’s federalism is about enlisting the states as partners in the ACA’s reforms and encouraging states to innovate with their own forms of insurance-exchange design, service delivery, and payment. The AHCA’s federalism philosophy might not be so different. If anything it may be more federalist and less universally oriented than the ACA. This is because the Republican plans thus far have not been as committed to the principal of universal care (particularly when it comes to the poor). So it seems the current Congress and Administration might not care so much if ERISA divides health policy into the “haves” and “have nots.” After all, those with employer-sponsored plans tend to be wealthier Americans. And those plans that avoid regulation are for the most part sponsored by large corporations. On the other hand, Republicans claim their driving philosophy is to return control over health policy to the states. It is hard to see how that can be done with ERISA impeding state regulation of health plans, since regulating health policy typically means regulating these plans. In other words, if the AHCA aims to give states more policy choices, it might be putting those policy choices on a collision course with ERISA. It seems doubtful that Congress will seek to fully repeal ERISA. It is less clear whether the Republicans could incorporate into the AHCA provisions that push ERISA aside for state policy choices made in implementing the AHCA. Any such efforts are likely to meet serious political resistance from stakeholders, including the powerful corporations who sponsor the plans. Democrats might not want repeal either, depending on their views about whether state governments can even be trusted on matters of health policy in a post-ACA world. (The House did pass a bill that takes a small step toward curbing ERISA by excluding stop-loss policies---which self-insured plans rely on to limit spending risk---from ERISA’s preemptive reach. If enacted into law, the bill could deter smaller employers from creating this kind of plan to avoid state regulation.) Change is most likely to come from the Court itself. Several commentators have already noticed that Advocate Health Care Network puts the Court in a particularly tricky position -- caught between its past tendency to read ERISA’s reach broadly, which would be more consistent with finding these plans subject to ERISA, and its more recent line of cases that seeks to accommodate religious employers seeking refuge from federal mandates. These cases may thus push the Court toward a narrower reading of ERISA than those from last term. And when it comes to the Court, there is a special puzzle with ERISA: even as the Court has taken a generous view of ERISA’s reach, the opinions have actually been explicit in interpreting ERISA’s power as narrower—weaker—than the statute’s literal text would allow. The Court has done this on the ground that ERISA’s broad language about displacing state laws that relate to insurance, read to its fullest power, would swallow all forms of state participation in health care, a result the Court seems to view as too extreme. Instead, the Court has tried to read ERISA in light of its ostensible purposes—especially ease of plan administration across state lines—all the while assuming Congress did not intend the statute to extend to the full possible reach of its language. The real point, however, is that Congress never really intended ERISA’s major effect to be on health care in the first place. Perhaps the current political and legal circumstances will finally create a legal environment conducive to remedying that error.