Demagogue

Arnold is posting this by proxy - we are having a bit of trouble with Blogger

- Eugene

One of my pet peeves regarding conservatives’ professed respect for “federalism” is the effort by conservative business organizations to preempt state and local governments’ decisions about how they spend their own money.

For instance, a company might sue on the theory that federal or state laws regarding health benefits prohibit a city from refusing to enter into contracts with companies that don’t provide health insurance for their employees. To be clear, this isn’t about a city trying to say that all businesses in the town have to provide health benefits; it’s about whether the city can decide that it doesn’t want to spend its own money on deals with companies who don’t live up to the city’s policy judgments.

Often, the federal or state law doesn’t even say anything about preempting local government action. And the local decision doesn’t conflict with anything in federal or state law. The business argues that preemption is implied, usually because the federal or state law is so thorough that the legislature must have intended to “occupy the field” regarding a particular subject.

Add another case to the growing list in this sorry category. The New York City Council passed a law requiring companies that do business with the city to provide same-sex partners of employees the same benefits that they provide employees’ spouses. As I understand it, the law doesn’t require any particular benefits, or even any benefits at all, to be provided, but says that if you do provide spousal benefits, then you must provide equal benefits to gay and lesbian partners. (The law passed, incidentally, over the veto of the usually homo-friendly mayor, Michael Bloomberg, whose homo-friendliness is one reason that many conservatives regard him, with justification, as a RINO).

I haven’t seen the appeals court’s decision, but from this article, I gather that it held the local law to be preempted by both state and federal law.

If my inference is correct, this is the state-law issue: the state probably has a law regulating public contracts—requiring an open bidding process, for example. Under that law, cities obviously define the work they want the contractor to do, e.g., constructing a new office building for municipal bureaucrats. And cities can attach various other conditions, e.g., the winning bidder must post a performance bond of a certain amount, must be licensed to do a certain kind of work, etc. But at some point, a court will say that the conditions are “unrelated to the quality or price of the goods or services” offered by the bidders (the quote, according to the article, comes from the court’s decision). And when that happens—I’m basically guessing now, since this isn’t my field—the court will say that the city is adding extra requirements beyond what the state law requires of public contractors, and that the state legislature did not intend to allow localities to supplement the requirements of the state law.

As far as the federal law goes, it seems pretty clear that the court was talking about ERISA, the federal statute governing benefit and pension plans. ERISA does have an express preemption clause, and the Supreme Court has spent an enormous amount of time in recent years sorting out which state and local laws are preempted by ERISA and which ones aren’t. One case that is tangentially related to the one in New York was about (IIRC) a state law that governed who inherits a deceased person’s property, and whether that law was preempted because the benefit plan at issue said who would get the benefits if the employee died. ERISA has become a major hindrance in many areas, which is why a lot of people would like to scrap it or at least get rid of the preemption clause; for instance, it gets in the way when states want folks to be able to sue their HMOs for malpractice, such as when an HMO administrator overrules the doctor and denies the patient a particular procedure or medication.

But to get back to the New York case, it’s time for the GOP to concede that, as a party, it doesn’t give a damn about local control, states’ rights, and federalism. When business wants to get rid of local regulations, Republicans are quick to write preemption clauses into federal legislation—especially now that they control Congress and the White House and can preempt Democrats who control legislatures in some states and cities. When the religious conservatives want to stamp out immorality, the Republicans are equally quick to take the issue away from the states, as in the proposed Hate Amendment. There are individuals, certainly, who have a principled position about federalism, but on the whole, the GOP and its various constituencies do whatever is easiest in pursuing their policy agenda. Nathan Newman has written, for example, about the Florida legislature’s repeated attempts to prohibit or gut local and state minimum wage laws, even though (i) the federal law contains an express non-preemption clause and (ii) Florida’s voters passed an increase to the state’s minimum wage by a ballot initiative last year. (In fact, Nathan recently had an excellent post listing a huge number of examples of conservative “anti-federalism.”)

A court has told New York City that it must do business with companies it regards as bigoted; will we see conservative organizations come to the city’s defense when it takes the case up to the Court of Appeals?