:: New Scholarship On The Legislative & Political History Of ERISA Preemption

he preemption language in section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA) is exceedingly broad. The preemption language in the law ERISA replaced – the Welfare and Pension Plans Disclosure Act of 1958 (WPPDA) – was exceedingly narrow. There were four stages in Congress’s journey from the narrowly circumscribed preemption of state law under the WPPDA to the sweeping suppression of state law under ERISA. This article covers the first three stages, tracing the evolution of ERISA’s preemption language from the enactment of the WPPDA to the end of the Ninety-Second Congress. The next article in this series will describe the legislative history of the preemption provision in the Ninety-Third Congress, which enacted ERISA.

Professor James A. Wooten,  University at Buffalo Law School, SUNY, has added to his previous work on the legislative and political history of ERISA’s preemption provisions.  The article, A Legislative and Political History of ERISA Preemption, Part 3 is available here for download at SSRN.

ERISA’s broad preemptive effect did not result from the machinations of a pro-business judicial perspective as is sometimes assumed. Congress intended ERISA’s sweeping away of state law to be complete. Professor Wooten’s work aids in an understanding of why Congress took this path, the political trade-offs involved, and ample citations to support his observations.

For example, Wooten describes Sen. Javits’ dilemma in these words:

Javits’s adoption of broader preemption language probably reflected political prudence as well. Business groups and the AFL-CIO opposed Javits’s bill because they rejected some or all of its major initiatives. But Javits might make his legislation less unpalatable—and perhaps mitigate the intensity of the opposition—if he made the federal regulations he proposed exclusive.

This is as close to drama as we get in our line of work. Interesting, informative and professionally useful as well, the series deserves space on your bookshelf or in your electronic library.

The article anticipates the publication of a fourth installment which will “trace the histories
of the sweeping preemption language in ERISA § 514(a), the savings clause in § 514(b)(2)(A), and
the deemer clause in § 514(b)(2)(B).”

Hat tip to Dan Ernst at the Legal History Blog.

Note:  Part 1 can be downloaded here – and Part 2 can be downloaded here.