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A judge in Maryland threw out our fair state's requirement that Wal-mart provide its workers with proper health care.

Here's what would have been required of everybody's favorite retailer:
The state law would have required large employers to spend at least 8 percent of payroll on health care or pay the difference in taxes.
I don't know about you, but I'd say that it's time Wal-mart owns up to its responsibility to take proper care of ALL of its workers, not just those in Maryland (which, it seems, it doesn't have to do now). Legislation to require this, unfortunately, is now out of the question. Any suggestions on what to do?

Update: Thanks to mbair for this link to the text of the ruling as provided by RILA, Wal-mart's friends.

Originally posted to adamschloss on Wed Jul 19, 2006 at 12:56 PM PDT.

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Comment Preferences

  •  mandate (6+ / 0-)

    employers provide their employees with health care.

    We have that in hawaii.  Why single out just Walmart or leave millions of others uncovered?

    or just go single payer and be done with it.

  •  Create better jobs so people don't have to work (9+ / 0-)
    at Wal-Mart.

    Or, better yet, universal health care.

    •  okay, but (2+ / 0-)
      Recommended by:
      April Follies, PhantomFly

      who cares what you do for a living if you have some security in your job, home, health and your kids go to a good school?

      The answer is unions, just my opinion. Service unions in this country are a joke and universal support for them could affect 50 - 65 miliion workers in the next ten years. That's a big number, but it has to be nationwide to work.

      This is off-topic, please bear with me. Look at what I read last week about Target and the minimum wage: Target threatens to exit Chicago over wage rules. Okay? So if it's only Chicago then they take the hit, pull up stakes and prove their point which is that they're in charge. So now you've got a knock down drag out fight with the City Council supporting the wage hike and just about everyone else ont he other side including the South Side churches because they won't get their new stores if the wage hike goes through. It has to be across the boards to work.

      This particular issue is different: Wal-Mart; healthcare and MD, but it all goes to the same place like when you flush.

      •  The answer is to not rely on private employers to (1+ / 0-)
        Recommended by:

        provide coverage.  That really is something the government should be doing.  

        •  yeah (1+ / 0-)
          Recommended by:

          I've been reading about "Medicare for all", this the next generation in policy from HillaryCare, which looks pretty darn good right about now. HillaryCare was basically regional HMO's, but it's got to be nationwide, imo.

          Medicare adminstration costs are something like 0.5%. Private insurers are something like 15-20%. Medicare also sets the prices for some stuff on a formula. If you've ever looked at a person's bill that's on Medicare you see all these "medicare adjustments" and "medicare reimbursements".

          Adjustments are when medicare tells the provider, no - we're lowering the cost of this procedure by this amount.

          Reimbursements are when medicare tells the provider, yes - we'll pay you this.

          The remainder is owed by the patient minus whatever they have in supplemental. Done. Anyone know someone on Medicare? They really really like it.

  •  Those activist judges (9+ / 0-)

    Those activist judges over ruling elected represntatives. Listen,        , that's the sound of neocons complaining.

    We shall overcome, someday.

    by Sam Wise Gingy on Wed Jul 19, 2006 at 12:55:38 PM PDT

  •  I am so so sorry to hear this (2+ / 0-)
    Recommended by:
    antirove, Elise

    The suit was brought by RILA, retail industry leaders association.

    They're popping the champagne corks and padding the bills to Lee Scott as we post.

    Their press release: RILA Applauds Ruling Striking Down Maryland...
    The ruling provided by RILA: RULING

    Do we have a lawyer in the house? What does it say, in english?

    •  Preempted by ERISA. (1+ / 0-)
      Recommended by:

      ERISA is the federal employer/employee benefits statute.

      Preemption means that when a federal statute addresses an issue, it trumps or moots any potentially conflicting state statutes.

      •  like I said down thread (1+ / 0-)
        Recommended by:
        CSI Bentonville

        it all goes to the same place when you pull the handle. I'm sorry for the gross language, I'm just so mad I could scream.  

      •  aoeu (1+ / 0-)
        Recommended by:
        CSI Bentonville
        So why do some states have higher minimum wages than the federal minimum wage?

        This land is your land, this land is my land
        This land was made for you and me

        by TealVeal on Wed Jul 19, 2006 at 03:06:06 PM PDT

        [ Parent ]

        •  Federal minimum wage is a floor, not a ceiling. (0+ / 0-)

          The policy goal is to allow workers to make a decent living ($5.15 don't cut it, but that's another thread).  Having a higher minimum wage in a state doesn't conflict with that goal.

          •  aoeu (0+ / 0-)

            Does that law explicitly say it's a floor?

            This land is your land, this land is my land
            This land was made for you and me

            by TealVeal on Wed Jul 19, 2006 at 07:00:07 PM PDT

            [ Parent ]

            •  Besides the word 'minimum?' eom (0+ / 0-)
              •  aoeu (1+ / 0-)
                Recommended by:
                CSI Bentonville

                States would be forcing comapnies to pay a higher minimum wage than the feds force companies to pay.

                This land is your land, this land is my land
                This land was made for you and me

                by TealVeal on Wed Jul 19, 2006 at 07:17:08 PM PDT

                [ Parent ]

              •  btw (0+ / 0-)

                I'm pretty sure a law can be a "floor" and still preempt state law.  for example... ERISA.  The Walmart law is comparable to a higher minimum wage, demanding more money in health benefits than ERISA requires.

                The key to figuring out preemption is the intent of congress, which can be found in the statute itself.

                ERISA and other statutes (ie NLRA etc) include explicit preemption clauses that clear out all the state law in the field.

                Though I don't know for sure, my guess is that minimum wage law does not include a preemption clause that prevents higher minimums from being set.

                I'm not positive about this, so if you know otherwise please correct me.

                "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

                by Lochners Bakers on Wed Jul 19, 2006 at 07:25:02 PM PDT

                [ Parent ]

                •  29 USC 218 (0+ / 0-)

                  No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter, and no provision of this chapter relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this chapter.

            •  it may not be the letter of the law (0+ / 0-)

              but it strikes me as the spirit. Then again, I haven't read the actual legislation, so take what I say with a grain of salt if you like.

              That said, Kansas has a minimum wage lower than that nationally mandated. Anybody know how that one has been resolved?

              take a look at what your state says here

              "We cannot defend freedom abroad by deserting it at home." -Edward R. Murrow

              by adamschloss on Wed Jul 19, 2006 at 07:09:18 PM PDT

              [ Parent ]

              •  When the federal rate is lower (0+ / 0-)

                the higher state rate applies.
                When the state rate is lower, the higher federal rate applies.

                Basically, the Kansas law is preempted.  I'm not sure if it is actually legally preempted (I would guess that it is) but I am sure that the federal minimum applies even in Kansas.

                "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

                by Lochners Bakers on Wed Jul 19, 2006 at 07:28:10 PM PDT

                [ Parent ]

                •  well, I would certainly hope so (0+ / 0-)

                  because the Kansas state-mandated minimum is barely more than half the federal minimum.

                  As other discussion here has made quite clear, it's not possible to live on the federal minimum... so I'm glad I don't live in Kansas.

                  "We cannot defend freedom abroad by deserting it at home." -Edward R. Murrow

                  by adamschloss on Wed Jul 19, 2006 at 07:31:55 PM PDT

                  [ Parent ]

  •  More from Reuters: (2+ / 0-)
    Recommended by:
    mbair, Elise

    U.S. District Judge J. Frederick Motz in Baltimore ruled that federal statutes in the Employee Retirement Income Security Act of 1974 trumped Maryland law.

    So, it may not have been the Bill of Attainder argument, but rather one of federal preemption of state law.

    Reuters article.

  •  Link to opinion here: (0+ / 0-)


    1.  They didn't deal with the Bill of Attainder issue (Maryland's constitution has a similar provision).  They dealt with this first.
    1.  The injury discussion related to standing to sue--was this an actual case or controversy??
    1.  It found that ERISA preempts this statute.
  •  What were the legal reasons behind it? (0+ / 0-)

    This is a bad court decision.

  •  Analysis of the decision (5+ / 0-)

    I'm going to give an analysis, but since I cannot diary yet, I'll just comment it.

    In sections:

    Section 1: Standing and ripeness (justiciability)
    Section 2: Jurisdiction/"payroll tax"
    Section 3: ERISA pre-emption*** (the important one)
    Section 4: 14th am. Equal Protection

    "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

    by Lochners Bakers on Wed Jul 19, 2006 at 01:56:51 PM PDT

    •  And please address (2+ / 0-)
      Recommended by:
      CSI Bentonville, BeninSC

      the question (mine, anyway) of whether the state can appeal, and on what grounds.

      The ERISA pre-emption will be interesting. ERISA does not address the same social issues as the Maryland law -- from the write-ups, it sounds as if the judge is concerned simply because they both involved keeping similar paperwork. That seems like a weak justification for overturning - I await your analysis.

      •  pretty sure (2+ / 0-)
        Recommended by:
        Elwood Dowd, BeninSC

        yes, there is pretty much an automatic appeal right at this level.  correct me if im wrong.

        "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

        by Lochners Bakers on Wed Jul 19, 2006 at 02:47:22 PM PDT

        [ Parent ]

        •  Analysis of walmart, section 1 - justiciability (2+ / 0-)
          Recommended by:
          April Follies, BeninSC

          Note: This analysis is just my personal informal opinion and is not legal advice of any kind.  This analysis is written for people relatively unfamiliar with the law.  To lawyers: I apologize for any oversimplifications or errors.  To nonlawyers: I apologize for any jargon or obscure references.

          I – Standing and ripeness (justiciability)


          There are three constitutional requirements of standing that come from "case or controversy" in article III of the constitution -

          1. The plaintiff must be HARMED.  "Injury in fact" or "invasion of a legally protected interest" are the ways the court describes it.  The harm must be concrete, and must have already happened (or be imminently about to happen).  For example, you cannot sue because you might be battered by the police, only if you have been or can show that you are about to be battered. (example from Lyons)
          1. The harm must be proximately CAUSED by the defendant.
          1. The harm must be REDRESSABLE,  (aka fixable by the court).

          (Lujan v. Defenders of Wildlife 504 U.S. 555 (1992))
          There are also 3 prudential requirements.  These the courts have just made up to prevent unfair or over-the-top litigation.

          1. No third party standing - you cannot sue based on harms to someone else (there are exceptions).
          1. No "generalized grievances" - for example: you cannot sue because someone is doing bad shit with tax dollars.  Everyone is affected by that problem the same way.
          1. Zone of interest test - the kind of harm done must be the kind that congress wanted to prevent when they passed the law you are suing under.

          Now - ignore all of these requirements except for the first one - HARM.  This is the only one that the judge thought was difficult.  The judge thought RILA met all the other requirements easily.
          But Lochner's Bakers (I hear someone asking)... why does the person have to be harmed in order to sue?  If there is someone doing something illegal, harm shouldn't be required!
          Maybe you are right, but the Constitution says that the federal courts created under Article III can only hear a "case or controversy."  This means that the two people fighting it out in court have to be really, honest-to-goodness, pissed-as-hell, fighting it out.  There must be a real live dispute between parties that oppose each other.  Also, the court should be able to resolve the problem (otherwise this whole lawsuit thing is pointless, no?)  Look back at those constitutional elements; they all tend to support the requirement that the two parties are fighting a real battle over a real, present problem that the court will fix. Alright, enough background.
          The question the court decided in this part of the opinion:

          ISSUE NUMBER 1
          Was RILA harmed by the law?
          There are special ways an association like RILA can be harmed.  If one of the members of the group was harmed, this will often be good enough, as long as the organization can stand strongly for that member.
          The judge said that RILA was harmed because Walmart was harmed.  Walmart is a member of RILA, and thus RILA is harmed by the legislation too.  RILA was created in part to help poor little company/members like Walmart protect themselves from naughty legislation.  
          If some members of RILA benefited from the legislation, that would make it harder to say that the organization can sue on this issue.  If membership both gains and loses, there could be some question whether the organization can fairly stand for both members.  The members would then have to litigate the issues themselves.
          But the judge ruled that this was not a problem for RILA.  To quote the judge: "There is nothing in the record to suggest there is any member of RILA who favors the act.  Indeed, as previously indicated, RILA's website makes clear that opposing statutory health care mandates is one of its missions."
          So, the judge argues, RILA was harmed and it makes sense for RILA to be able to fight this case.

          WHAT I THINK

          The supreme court has been recently rolling back standing dramatically.  From Lujan to the present, federal courts have been reigning in standing by environmental groups and human rights activists.  It seems strange to buck that trend in this case.  From a crit perspective, maybe it is because the court is more concerned about corporate harm than environmental?
          More importantly (for more formalistic thinkers out there) the court almost entirely ignores the prudential elements, such as "no generalized grievance." There may be some argument that this is a generalized grievance (feel free to debate).
          However, ultimately the biggest problem with this part of the ruling is the argument that RILA can fairly represent all the members.  Every member of RILA that has less than 10,000 employees in Maryland was helped by the legislation, because the ultra-competitive industry of competing with Walmart was tilted in favor of smaller businesses.
          This law helped every not Walmart, including the giant Giant food stores chain.  Giant lobbied for the legislation even though they had 10,000 because Giant provides adequate benefits.  This would allow Giant to continue to provide those benefits in a very competitive marketplace.
          Though, as the judge points out, Giant was not a member, every company that was a member and was not Walmart was helped by this legislation in just the same way that Giant was.  Non-enormous business was greatly helped by this legislation.  RILA members were both hurt (Walmart) and helped (everyone else), so RILA should not get organizational injury standing.

          Regarding ripeness – the judge dealt with this really fast so I will too.
          A case must be ripe to be heard in court.  Ripeness is what it sounds like: the issues must be at a point of actual conflict before the case starts.  If you think you might have a conflict later, the case is not ripe.  Only when you actually come to blows is the case ripe for adjudication.
          This case is ripe because the law was passed and will go into effect very soon.  The government tried to argue that RILA had to wait until the effective date of the regulations (which haven’t even been written yet).  I agree with the judge on this one, the harm is clearly going to happen very soon so the conflict is ripe.

          Next... Jurisdiction and the “payroll tax”

          "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

          by Lochners Bakers on Wed Jul 19, 2006 at 05:18:21 PM PDT

          [ Parent ]

        •  Analysis of Walmart, section II - jurisdiction (2+ / 0-)
          Recommended by:
          April Follies, BeninSC

          Section II: Jurisdiction and the “payroll tax”
          Jurisdiction = the power to hear a case.
          If the court does not have “jurisdiction,” that court cannot hear the case.  Federal courts have limited jurisdiction.  There are lots of cases they cannot hear.  Federal court jurisdiction is controlled by lawmakers, our good buddies in Congress (and, on the outer limits, the Constitution itself).
          Congress passed a law call the Tax Injunction Act (TIA) which takes away some Federal court jurisdiction.  Here is the TIA:
          “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341.
          I think the last time the Supreme Court interpreted this law was Hibbs v. Winn 542 U.S. 88 (2004)
          The law is simple.  You cannot sue in federal court to stop a tax from being collected if the state courts have a remedy.
          The problem is, it isn’t obvious whether the Maryland Walmart law is a tax.  If the law is a tax, the Federal court might not have the jurisdiction to invalidate the law.
          In the Fourth Circuit (which includes Maryland), the courts have developed a three factor test:

          1. What part of the government is imposing the charge?
          1. Who is paying the charge?
          1. How is the money used?

          Factor #1
          (aside: this part of the opinion is pretty snarky if you ask me... the judge has some strange parentheticals about how there is only one noncompliant employer.  He seems to have an underlying problem with the way the law is aimed at Walmart.  Talk about judicial activism.)
          The judge admits that the charge was levied by the legislature, not a regulatory agency.  However, he emphasized that a regulatory agency (not tax agency) will have the authority to collect the tax.
          Factor #2
          (more snarking... jeez)
          The judge says that the law is narrowly targeted at Walmart.  It is not a general tax, but a more narrow regulation.
          Factor #3
          The judge concedes that the money collected would be used for the public benefit, just like a tax.  However, the judge argues that the “purpose” of the law is not to raise money at all, so it is irrelevant what any money that would be raised is used for.  He also states that Walmart would pay more benefits, “rather than to pay a tax into a general fund for low income residents’ health care.”  Thus the law would not function practically as a tax.

          WHAT I THINK

          I think the judge is right about the regulatory “purpose” of the law.  But that doesn’t convince me that this law is not a tax.  When states impose a tax on cigarettes, or gasoline, or any other so-called “sin tax,” the law has both tax and regulatory features.  In fact, every tax channels peoples behavior: tax exemptions for home ownership, low-income housing, corporate tax breaks, married tax levels.
          Every tax also regulates behavior.  Taxing is one of the greatest government regulatory powers!
          Though I am not sure what I think the result should ultimately be on this issue without looking at the record in more detail, the analysis of the judge is not always persuasive, and I could see this coming out either way.
          My instinct is to think that this part of the decision was correctly decided, but I’d love to hear what you think.

          Next... ERISA preemption

          "The discourse of commerce must give way to another voice, to the language of rights and citizenship."

          by Lochners Bakers on Wed Jul 19, 2006 at 06:33:08 PM PDT

          [ Parent ]

  •  This is judicial activism (1+ / 0-)
    Recommended by:
    CSI Bentonville

    of the extreme sort.  Of course it is the exact kind of Lochner-type judicial activism that the Rethugs love.

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