On his blog, the Sacramento Bee’s Daniel Weintraub opines on the Judge White’s decision on Healthy San Francisco.
In reading the decision, he notes something that I noticed as well: that even this George W. Bush-appointed judge, with his very expansive view of ERISA pre-emption, left the door open for state and local health reforms. He even suggested what he thought might pass muster:
“The Court is not convinced that other alternatives for creating a program for providing public health care are not viable. Defendants propose an increased general tax requirement, but state the unfairness of not taking existing health care expenditures into account. Without wading into legislative dominion, the Court can envision such a tax program that take existing health care expenditures by private employers into account in the form of tax credits.”
Such a structure was exactly what was proposed in SB2/Prop 72 in 2004, and it’s a version of what is being proposed with the financing to AB x1 1.
There’s lots of ways to structure an employer contribution requirement, and Maryland was different than San Francisco, which is different from Massachusetts, which is different from SB2, which is different from AB x1 1.
Some legal experts believe that the Ninth Circuit has on-point cases that may lead this case to be overturned on appeal. But even this ruling provides an opening.