"An apparently irrational distinction": a suggestion for using equal protection arguments to overcome conflicts in...

ERISA's conflicting goals of providing national treatment of employee pension plans, while simultaneously preserving the rights of states to regulate insurance has resulted in a chaotic preemption quagmire. Unequal, unjustified, and irreconcilable treatment of benefit plans premised upon whether they are "self-funded" or "insured" results in legal distinctions that bear little semblance to the reality of today's healthcare funding mechanisms. The author provides an overview of the legal and practical problems inherent in the current ERISA preemption analysis, and proposes a novel equal protection solution.