Thursday, July 29, 2010

Don’t you just hate it when judicial activists rewrite the law?

Let us consider the definition of “judicial activism,” as described by the good people at Wikipedia:

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Indeed it is quite frustrating when unelected judges, based on their own views of wise public policy, presume to overturn the considered judgments of a popularly-elected legislature.

ERISA law is the way it is today as a result of rampant and repeated judicial activism. With ths post we begin a series of examinations of the various ways in which Congress’ initial intent behind ERISA has been not only disregarded but corrupted by activist judges.

For starters, let’s begin with a big whopper: the idea that ERISA was primarily intended to induce employers to offer benefits, any benefits, to employees -- by making those benefits dirt cheap. This rationale has been used as a justification for everything from denying discovery, to using an absurd “standard of review,” to denying any sort of meaningful relief for aggrieved beneficiaries of ERISA plans.

It’s a lie.

How do we figure out what Congress was trying to do when it enacted ERISA? That would require a lot of research and digging, but for the fact Congress was kind enough to tell us, in the very first section of ERISA, 29 USC §1001. Congress said it passed ERISA because:

...the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; ... that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; ... that owing to the lack of employee information and adequate safeguards concerning their operation, it is desirable in the interests of employees and their beneficiaries, and to provide for the general welfare and the free flow of commerce, that disclosure be made and safeguards be provided with respect to the establishment, operation, and administration of such plans; ... that despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable in the interests of employees and their beneficiaries, for the protection of the revenue of the United States, and to provide for the free flow of commerce, that minimum standards be provided assuring the equitable character of such plans and their financial soundness.

Now, I left out some language, indicated by the ellipses, so that this blog post doesn’t become more lengthy than my usual verbose legal briefs. But you can check it against the full version; there’s not a word in there which indicates any Congressional concern with making employee benefits cheap for employers to provide, regardless of how illusory those benefits may be, and certainly nothing about a concern for poor little insurance companies who are haled into court when they defraud someone. Later in the same statute Congress tells us it is enacting ERISA: protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

So we know what Congress was trying to do, and we know what concerns were behind its enacting ERISA.

Now fast-forward to 2010, and the Supreme Court’s recent decision in Conkright v. Frommert:

Congress enacted ERISA to ensure that employees would receive the benefits they had earned, but Congress did not require employers to establish benefit plans in the first place. Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). We have therefore recognized that ERISA represents a "`careful balancing' between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans." Aetna Health Inc. v. Davila, 542 U.S. 200, 215, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). Congress sought "to create a system that is [not] so complex that administrative costs, or litigation expenses, unduly discourage employers from offering [ERISA] plans in the first place." Varity Corp., supra, at 497, 116 S.Ct. 1065. ERISA "induc[es] employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial orders and awards when a violation has occurred." Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002).

That’s Chief Justice Roberts writing, there, for a 5-3 majority (Justice Sotomayor didn’t participate in this case).

Notice how, for every proposition about ERISA being supposedly concerned with “administrative costs,” or “litigation expenses,” or “a predictable set of liabilities,” he is able to cite to previous cases which said those things. So Chief Justice Roberts isn’t alone in this, although he sure seems like a true believer.

Notice, though, what's missing? Chief Justice Roberts is able to offer not a single citation to the ERISA statute, as passed by Congress, to support this passage. This stuff is all judge-made baloney.

Now, no one pretends administrative and litigation expenses and such are not important in themselves. But the fact is that Congress did not mention them, at all, when it described its reasons for enacting ERISA. And, important as these things are, it is judicial activism, pure and simple, to decide they trump what Congress was trying to do: protect beneficiaries and participants in employee benefit plans.

More later...

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