Many of you woke up to the Maryland news wondering how the federal ERISA law would play into this state enactment. Doesn’t ERISA bar state enactments of this type? Won’t members of the ERISA bar cash in on this boomlet?
Maybe – but some of those same sages have opined in a cautiously positive manner on the ERISA bulwark, pointing out in that Hawaii was only able to impose an employer mandate with an exception from ERISA’s preemption clause back in 1974 (think 8-tracks, long hair and Hawaii-5-0).
Ergo, (but not ergo) absent an ERISA waiver, Maryland and other states are making empty enactments – litigation certainly to follow. Not that many politicians would be averse to making the empty big gesture for the cameras…no, never.