A little judicial activism anyone? I am not sure what else, when you look at the actual history of how ERISA preemption came into being, you can call the demands that come from many quarters for courts to reduce the scope of preemption in the ERISA context, or, for that matter, the Ninth Circuit’s decision upholding the San Francisco health insurance mandate. James Wooten, of the University at Buffalo Law School, documents the political history of the enactment of ERISA and its broad preemption provision in this article here, emphasizing that the history of federal regulation and statutory enaction in this field progressed from one – based in legislation from the 1950s – that ceded much authority to the states to one – encapsulated in ERISA – that removed the states entirely from the field. Professor Wooten explains that the eventual progression reached the point where: “Over the course of the Ninety-Third Congress, which passed ERISA, lawmakers further expanded the preemption language so that employee benefit plans became ‘an area of exclusive federal concern.’ ERISA § 514(a) preempts state regulation of benefit plans even with respect to matters federal law does not address.” It is simply hard to understand how decisions such as the Ninth Circuit ruling that – contrary to all other courts presented with the same issues – found that a local ordinance mandating a certain structure with regard to employee benefit plans is not preempted can square with the well-documented legislative history of a deliberate intent to preempt the states even, as the professor phrases it, “with respect to matters federal law does not [even] address.” Quite simply, rulings and arguments by commentators that ERISA preemption should be read more narrowly than has been the case, and concomitant decisions like the Ninth Circuit ruling on the San Francisco act, may be understandable as an argument for or exercise in some sort of normative cum Dworkian cum Judge Hercules decision making, where the courts are to bring an aging statute into compliance with current circumstances, but they certainly cannot be justified as an accurate interpretation of congressional intent itself.