Retail Industry Leaders Ass'n v. Fielder

Filed: February 2, 2007

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1840
(1:06-cv-00316-JFM)

RETAIL INDUSTRY LEADERS ASSOCIATION,

Plaintiff - Appellee,

versus

JAMES D. FIELDER, JR., in his official
capacity as Maryland Secretary of
Labor, Licensing, and Regulation,
Defendant - Appellant,

-------------------------

AARP; MEDICAID MATTERS,!Maryland;
MARYLAND CITIZENS' HEALTH INITIATIVE
EDUCATION FUND, INCORPORATED;

Amici Supporting Appellant,

NATIONAL FEDERATION OF INDEPENDENT
BUSINESS LEGAL FOUNDATION; MARYLAND
CHAMBER OF COMMERCE; SECRETARY OF
LABOR; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA; SOCIETY
FOR HUMAN RESOURCE MANAGEMENT; THE
HR POLICY ASSOCIATION; AMERICAN
BENEFITS COUNCIL
Amici Supporting Appellee.

_________________

No. 06-1901
1:06-cv-00316-JFM
_________________

RETAIL INDUSTRY LEADERS ASSOCIATION,

Plaintiff - Appellant,
 versus

JAMES D. FIELDER, JR., in his official
capacity as Maryland Secretary of Labor,
Licensing, and Regulation,

Defendant - Appellee,

-------------------------

NATIONAL FEDERATION OF INDEPENDENT
BUSINESS LEGAL FOUNDATION; MARYLAND
CHAMBER OF COMMERCE; SECRETARY OF LABOR;
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA; SOCIETY FOR HUMAN RESOURCE
MANAGEMENT; THE HR POLICY ASSOCIATION;
AMERICAN BENEFITS COUNCIL,

Amici Supporting Appellant,

AARP; MEDICAID MATTERS,!Maryland; MARYLAND
CITIZENS' HEALTH INITIATIVE EDUCATION
FUND, INCORPORATED,

Amici Supporting Appellee,

O R D E R

Upon notification from amicus AARP that their correct legal

name is “AARP” rather than “American Association of Retired

Persons,” the court amends the opinion in this case as follows:

In the case caption for 06-1840 on page 1, “AARP” is

substituted for “American Association of Retired Persons” in the

first line of the “Amici Supporting Appellee.”

In the case caption for 06-1901 on page 2, “AARP” is

substituted for “American Association of Retired Persons” in the

first line of the “Amici Supporting Appellee.”
 In line 22 of the counsel section on page 3, “AARP” is

substituted for “American Association of Retired Persons.”

For the Court - By Direction

/s/ Patricia S. Connor
____________________________
Clerk
 CORRECTED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RETAIL INDUSTRY LEADERS ASSOCIATION, 
Plaintiff-Appellee,
v.
JAMES D. FIELDER, JR., in his official
capacity as Maryland Secretary of
Labor, Licensing, and Regulation,
Defendant-Appellant.

AARP; MEDICAID


MATTERS!MARYLAND; MARYLAND
CITIZENS’ HEALTH INITIATIVE EDUCATION No. 06-1840
FUND, INCORPORATED,
Amici Supporting Appellant,
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS LEGAL FOUNDATION;
MARYLAND CHAMBER OF COMMERCE;
SECRETARY OF LABOR; CHAMBER OF
COMMERCE OF THE UNITED STATES OF
AMERICA; SOCIETY FOR HUMAN
RESOURCE MANAGEMENT; THE HR
POLICY ASSOCIATION; AMERICAN
BENEFITS COUNCIL,
Amici Supporting Appellee.

2 RETAIL INDUSTRY LEADERS v. FIELDER

RETAIL INDUSTRY LEADERS ASSOCIATION, 
Plaintiff-Appellant,
v.
JAMES D. FIELDER, JR., in his official
capacity as Maryland Secretary of
Labor, Licensing, and Regulation,
Defendant-Appellee.

NATIONAL FEDERATION OF INDEPENDENT
BUSINESS LEGAL FOUNDATION;


MARYLAND CHAMBER OF COMMERCE;
SECRETARY OF LABOR; CHAMBER OF No. 06-1901
COMMERCE OF THE UNITED STATES OF
AMERICA; SOCIETY FOR HUMAN
RESOURCE MANAGEMENT; THE HR
POLICY ASSOCIATION; AMERICAN
BENEFITS COUNCIL,
Amici Supporting Appellant,
AARP; MEDICAID
MATTERS!MARYLAND; MARYLAND
CITIZENS’ HEALTH INITIATIVE EDUCATION
FUND, INCORPORATED,
Amici Supporting Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:06-cv-00316-JFM)

Argued: November 30, 2006

Decided: January 17, 2007

Counsel Section Corrected: January 23, 2007
 RETAIL INDUSTRY LEADERS v. FIELDER 3
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Traxler joined. Judge Michael wrote a dissenting
opinion.

COUNSEL

ARGUED: Steven Marshall Sullivan, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for James D. Fielder, Jr., in his official capacity as
Maryland Secretary of Labor, Licensing, and Regulation. William
Jeffrey Kilberg, GIBSON, DUNN & CRUTCHER, L.L.P., Washing-
ton, D.C., for Retail Industry Leaders Association. Timothy David
Hauser, Associate Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Office of the Solicitor, Washington, D.C., for Amici
Supporting Retail Industry Leaders Association. ON BRIEF: J. Joseph
Curran, Jr., Attorney General of Maryland, Margaret Ann Nolan, As-
sistant Attorney General, Gary W. Kuc, Assistant Attorney General, Carl
N. Zacarias, Staff Attorney, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland; Robert A. Zarnoch, Assistant
Attorney General, Kathryn M. Rowe, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Annapolis, Mary-land, for James D.
Fielder, Jr., in his official capacity as Maryland Secretary of Labor, Li-
censing, and Regulation. W. Stephen Cannon, Todd Anderson,
CONSTANTINE CANNON, P.C., Washington, D.C.; Eugene Scalia,
Paul Blankenstein, William M. Jay, GIBSON, DUNN & CRUTCHER,
L.L.P., Washington, D.C., for Retail Industry Leaders Association. Mary
Ellen Signorille, Jay E. Sushelsky, AARP FOUNDATION; Melvin
Radowitz, AARP, Washington, D.C., for AARP, Amicus Supporting
James D. Fielder, Jr., in his official capacity as Maryland Secretary of
Labor, Licensing, and Regulation. Steven D. Schwinn, Professor, UNI-
VERSITY OF MARYLAND SCHOOL OF LAW, Baltimore,
Maryland, for Medicaid Matters!Maryland, Amicus Supporting James
D. Fielder, Jr., in his official capacity as Maryland Secretary of Labor,
4 RETAIL INDUSTRY LEADERS v. FIELDER
Licensing, and Regulation. Suzanne Sangree, PUBLIC JUSTICE
CENTER, Baltimore, Maryland; Michael A. Pretl, Salisbury, Mary-
land, for Maryland Citizens’ Health Initiative Education Fund, Incor-
porated, Amicus Supporting James D. Fielder, Jr., in his official
capacity as Maryland Secretary of Labor, Licensing, and Regulation.
Karen R. Harned, Elizabeth A. Gaudio, NFIB LEGAL FOUNDA-
TION, Washington, D.C.; Leslie Robert Stellman, HODES, ULMAN,
PESSIN & KATZ, P.A., Towson, Maryland, for National Federation
of Independent Business Legal Foundation, Amicus Supporting Retail
Industry Leaders Association. Richard L. Hackman, SMITH &
DOWNEY, P.A., Baltimore, Maryland, for Maryland Chamber of
Commerce, Amicus Supporting Retail Industry Leaders Association.
Howard M. Radzely, Solicitor of Labor, Karen L. Handorf, Counsel
for Appellate and Special Litigation, James Craig, Senior Attorney,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solic-
itor, Plan Benefits Security Division, Washington, D.C., for Secretary
of Labor, Amicus Supporting Retail Industry Leaders Association.
James P. Baker, Heather Reinschmidt, JONES DAY, San Francisco,
California; Willis J. Goldsmith, JONES DAY, New York, New York,
for Chamber of Commerce of the United States of America, Amicus
Supporting Retail Industry Leaders Association. Thomas M. Cristina,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Greenville, South Carolina, for The Society for Human Resource
Management, The HR Policy Association, and American Benefits
Council, Amici Supporting Retail Industry Leaders Association.

OPINION

NIEMEYER, Circuit Judge:

On January 12, 2006, the Maryland General Assembly enacted the
Fair Share Health Care Fund Act, which requires employers with
10,000 or more Maryland employees to spend at least 8% of their
total payrolls on employees’ health insurance costs or pay the amount
their spending falls short to the State of Maryland. Resulting from a
nationwide campaign to force Wal-Mart Stores, Inc., to increase
health insurance benefits for its 16,000 Maryland employees, the
Act’s minimum spending provision was crafted to cover just Wal-
 RETAIL INDUSTRY LEADERS v. FIELDER 5
Mart. The Retail Industry Leaders Association, of which Wal-Mart is
a member, brought suit against James D. Fielder, Jr., the Maryland
Secretary of Labor, Licensing, and Regulation, to declare that the Act
is preempted by the Employee Retirement Income Security Act of
1974 ("ERISA") and to enjoin the Act’s enforcement. On cross-
motions for summary judgment, the district court entered judgment
declaring that the Act is preempted by ERISA and therefore not
enforceable, and this appeal followed.

Because Maryland’s Fair Share Health Care Fund Act effectively
requires employers in Maryland covered by the Act to restructure
their employee health insurance plans, it conflicts with ERISA’s goal
of permitting uniform nationwide administration of these plans. We
conclude therefore that the Maryland Act is preempted by ERISA and
accordingly affirm.

I

Before enactment of the Fair Share Health Care Fund Act ("Fair
Share Act"), 2006 Md. Laws 1, Md. Code Ann., Lab. & Empl. §§ 8.5-
101 to -107, the Maryland General Assembly heard extensive testi-
mony about the rising costs of the Maryland Medical Assistance Pro-
gram (Medicaid and children’s health programs). It learned that
between fiscal years 2003 and 2006, annual expenditures on the Pro-
gram increased from $3.46 billion to $4.7 billion. The General
Assembly also perceived that Wal-Mart Stores, Inc., a particularly
large employer, provided its employees with a substandard level of
healthcare benefits, forcing many Wal-Mart employees to depend on
state-subsidized healthcare programs. Indeed, the Maryland Depart-
ment of Legislative Services (which has the duties of providing the
Maryland General Assembly with research, analysis, assessments, and
evaluations of legislative issues) prepared an analytical report of the
proposed Fair Share Act for the General Assembly, that discussed
only Wal-Mart’s employee benefits practices. In the background por-
tion of the report, the Department of Legislative Services wrote:

Several States, facing rapidly-increasing Medicaid costs, are
turning to the private sector to bear more of the costs. Wal-
Mart, in particular, has been the focus of several states, who
are accusing the company of providing substandard health
6 RETAIL INDUSTRY LEADERS v. FIELDER
benefits to its employees. According to the New York Times,
Wal-Mart full-time employees earn an average $1,200 a
month, or about $8 an hour.

Some states claim many Wal-Mart employees end up on
public health programs such as Medicaid. A survey by
Georgia officials found that more than 10,000 children of
Wal-Mart employees were enrolled in the state’s children’s
health insurance program (CHIP) at a cost of nearly $10
million annually. Similarly, a North Carolina hospital found
that 31% of 1,900 patients who said they were Wal-Mart
employees were enrolled in Medicaid, and an additional
16% were uninsured.

As a result, some States have turned to Wal-Mart to assume
more of the financial burden of its workers’ health care
costs. California passed a law in 2003 that will require most
employers to either provide health coverage to employees or
pay into a state insurance pool that would do so. Advocates
of the law say Wal-Mart employees cost California health
insurance programs about $32 million annually. Washington
state is exploring implementing a similar state law.

According to the [New York] Times, Wal-Mart said that its
employees are mostly insured, citing internal surveys show-
ing that 90% of workers have health coverage, often through
Medicare or family members’ policies. Wal-Mart officials
say the company provides health coverage to about 537,000,
or 45% of its total workforce. As a matter of comparison,
Costco Wholesale provides health insurance to 96% of eligi-
ble employees.

In response, the General Assembly enacted the Fair Share Act in
January 2006, to become effective January 1, 2007. The Act applies
to employers that have at least 10,000 employees in Maryland, Md.
Code Ann., Lab. & Empl. § 8.5-102, and imposes spending and
reporting requirements on such employers. The core provision pro-
vides:

An employer that is not organized as a nonprofit organiza-
tion and does not spend up to 8% of the total wages paid to
 RETAIL INDUSTRY LEADERS v. FIELDER 7
employees in the State on health insurance costs shall pay
to the Secretary an amount equal to the difference between
what the employer spends for health insurance costs and an
amount equal to 8% of the total wages paid to employees in
the State.

Id. § 8.5-104(b). An employer that fails to make the required payment
is subject to a civil penalty of $250,000. Id. § 8.5-105(b).

The Act also requires a covered employer to submit an annual
report on January 1 of each year to the Secretary, in which the
employer must disclose: (1) how many employees it had for the prior
year, (2) its "health insurance costs," and (3) the percentage of com-
pensation it spent on "health insurance costs" for the "year immedi-
ately preceding the previous calendar year." Id. § 8.5-103(a)(1). The
Act defines "health insurance costs" to include expenditures on both
healthcare and health insurance to the extent that they are deductible
under § 213(d) of the Internal Revenue Code. Id. § 8.5-101.

Any payments collected by the Secretary are directed to the Fair
Share Health Care Fund, which is held by the Treasurer of the State
and accounted for by the State Comptroller like all other state funds.
Md. Code Ann., Health-Gen. § 15-142(d), (g). The funds so collected,
however, may be used only to support the Maryland Medical Assis-
tance Program, which consists of Maryland’s Medicaid and children’s
health programs. Id. § 15-142(f).

The record discloses that only four employers have at least 10,000
employees in Maryland: Johns Hopkins University, Giant Food, Nor-
throp Grumman, and Wal-Mart. The Fair Share Act subjected Johns
Hopkins, as a nonprofit organization, to a lower 6% spending thresh-
old which Johns Hopkins already satisfies. Giant Food, which
employs unionized workers, spends over the 8% threshold on health
insurance and lobbied in support of the Fair Share Act. Northrop
Grumman, a defense contractor, was subject to the minimum spend-
ing requirement in an earlier version of the Act, but the General
Assembly included an amendment that effectively excluded Northrop
Grumman. Because Northrop Grumman has many high-salaried
employees in Maryland, the General Assembly was able to exclude
it by an amendment that permits an employer, in calculating its total
8 RETAIL INDUSTRY LEADERS v. FIELDER
wages paid, to exempt compensation paid to employees in excess of
the median household income in Maryland. See Md. Code Ann., Lab.
& Empl. § 8.5-103(b)(1). The parties agree that only Wal-Mart, who
employs approximately 16,000 in Maryland, is currently subject to
the Act’s minimum spending requirements. Wal-Mart representatives
testified that it spends about 7 to 8% of its total payroll on healthcare,
falling short of the Act’s 8% threshold.

The legislative record also makes clear that legislators and affected
parties assumed that the Fair Share Act would force Wal-Mart to
increase its spending on healthcare benefits rather than to pay monies
to the State. For example, one of the Act’s sponsors, Senator Thomas
V. Mike Miller, Jr., Maryland Senate President, described the Act
during a floor debate: "It takes people who should be getting health
benefits at work off the [State’s] rolls and it requires those employers
to provide it." Floor Debate on Senate Bill 790, 2006 Leg., 421st
Sess., (Md. Jan. 12, 2006) (emphasis added).

Shortly after enactment of the Fair Share Act, the Retail Industry
Leaders Association ("RILA") commenced this action against the
Maryland Secretary of Labor, Licensing, and Regulation to declare
the Act preempted by ERISA and to enjoin the Secretary from enforc-
ing it. RILA is a trade association whose members are major compa-
nies from all segments of retailing, including Wal-Mart, as well as
many of Wal-Mart’s competitors, such as Best Buy Company, Target
Corporation, Lowe’s Companies, and IKEA. Many of these competi-
tors are represented on RILA’s board, which voted unanimously to
authorize RILA to prosecute this action.

RILA’s complaint alleged that the Fair Share Act was preempted
by ERISA, 29 U.S.C. § 1144. It also alleged that the Fair Share Act
violated the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution and the "special law" prohibition of the
Maryland Constitution, art. III, § 33.

Shortly after filing its complaint, RILA filed a motion for summary
judgment on its ERISA-preemption claim and its equal-protection
claim. In response, the Secretary filed a motion to dismiss RILA’s
complaint for lack of jurisdiction, arguing (1) that RILA lacked stand-
ing; (2) that its claims were not ripe; and (3) that its complaint was
 RETAIL INDUSTRY LEADERS v. FIELDER 9
barred by the Tax Injunction Act, 28 U.S.C. § 1341, which prohibits
federal courts in most cases from enjoining, suspending, or restraining
a State’s collection of taxes. In the alternative, the Secretary filed a
cross-motion for summary judgment addressing all three of RILA’s
claims.

The district court rejected the Secretary’s jurisdictional arguments
and concluded that ERISA preempted the Fair Share Act because the
Act effectively mandated that employers spend a minimum amount
on healthcare benefit plans. The court also found that the Fair Share
Act did not violate the Equal Protection Clause because the Act’s
classifications were not irrational. Each party appealed, challenging
the rulings adverse to it.

II

We address first the Secretary’s jurisdictional challenges based on
standing, ripeness, and the Tax Injunction Act.

A

While RILA does not assert injury to itself, it claims "associational
standing" to enforce the rights of its members. See Hunt v. Washing-
ton State Apple Advertising Comm’n, 432 U.S. 333, 345 (1977)
(authorizing the standing of an association when (a) its members
would otherwise have standing1 to sue in their own right; (b) the inter-
ests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the par-
ticipation of individual members in the lawsuit"). Associational stand-
ing may exist even when just one of the association’s members would
have standing. See Warth v. Seldin, 422 U.S. 490, 511 (1975)
(explaining that an "association must allege that its members, or any
one of them, are suffering immediate or threatened injury" (emphasis
added)).
1
The well-known criteria for standing are that the plaintiff must allege
an (1) injury in fact (2) that is fairly traceable to the defendant’s conduct
and (3) that is likely to be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Allen v. Wright, 468
U.S. 737, 751 (1984).
10 RETAIL INDUSTRY LEADERS v. FIELDER
The Secretary argues first that no member of RILA has standing to
sue in its own right because the injuries claimed in this case are not
sufficiently imminent. He notes that the Fair Share Act is not yet
effective and that he has not yet promulgated regulations implement-
ing the Act.

To be sure, the alleged injury must, for standing purposes, be "con-
crete and particularized" and "actual or imminent, not conjectural or
hypothetical." Lujan, 504 U.S. at 560. But "one does not have to
await the consummation of threatened injury to obtain preventative
relief. If the injury is certainly impending, that is enough." Friends of
the Earth, Inc. v. Gaston Cooper Recycling Corp., 204 F.3d 149, 160
(4th Cir. 2000) (quoting Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298 (1979)).

In this case, if Wal-Mart’s injury is not actual, it is certainly
impending. First, RILA alleges, and the district court concluded, that
Wal-Mart’s healthcare spending falls below 8% of its total wages.
Accordingly, Wal-Mart faces the imminent injury of being forced
either to increase its healthcare spending by January 1, 2007, or to
make a payment to the Secretary. Second, the Fair Share Act’s report-
ing requirements impose administrative burdens on Wal-Mart even
now. According to Wal-Mart’s Director of United States Benefits
Design, Wal-Mart presently administers its healthcare plans on a
nationwide basis and does not specifically track its expenditures for
Maryland employees. Thus, the Act will force Wal-Mart to alter its
internal accounting practices to acquire the information required for
the report that is due on January 1, 2007, and to incur expenses now
in preparing and filing it with the Secretary. Finally, the Act’s mini-
mum spending provision will hamper Wal-Mart’s ability to adminis-
ter its employee benefit plans in a uniform manner across the nation.
See N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 658-59 (1999) (describing uniform plan
administration as a benefit that ERISA gives to employers).

The Secretary also argues, focusing only on the 8% threshold
spending requirement, that Wal-Mart’s alleged injury is merely "hy-
pothetical" because it is not certain that Wal-Mart’s healthcare expen-
ditures fall below 8%. To make this argument, the Secretary lifted out
of context a fragment from the testimony of a Wal-Mart representa-
 RETAIL INDUSTRY LEADERS v. FIELDER 11
tive given before a legislative committee that Wal-Mart’s healthcare
spending "could be at 10 or 12 percent, but we don’t know." In the
next breath, however, the representative stated, "Based off the defini-
tions under this bill, we took plenty of time — Lisa Woods spent
plenty of time researching the different areas of law . . . we believe
we do fall at 7 or 8%." At least four Wal-Mart representatives testi-
fied before a legislative committee or by affidavit that Wal-Mart
spends below 8% of its total payroll on healthcare. If the Secretary
seriously does not believe that Wal-Mart spends below 8% on health-
care benefits, then he second-guesses the General Assembly which
focused on this fact as the reason to enact the Fair Share Act in the
first place.

Seeking to undermine RILA’s satisfaction of another element nec-
essary for associational standing, the Secretary contends that the
nature of RILA’s suit requires that at least one of its members, Wal-
Mart, participate in the lawsuit, thus destroying the basis for RILA’s
associational standing. See Hunt, 432 U.S. at 435. This argument is
somewhat peculiar because the Secretary has maintained that the Act
is not special legislation directed at Wal-Mart. Even so, based on the
nature of the action actually filed and the relief sought, we see little,
if any, need for Wal-Mart or any other RILA member to present indi-
vidualized proof. RILA’s two challenges to the Fair Share Act — pre-
emption under ERISA and violation of the Equal Protection Clause
— require the court to make judgments regarding the nature and oper-
ation of the Act generally and require no findings of fact regarding
the specific operations of Wal-Mart or other RILA members. While
the Secretary may wish to challenge the suggestion that Wal-Mart’s
healthcare spending fails to satisfy the 8% threshold, such a challenge
would still not address the other injuries in fact sustained by Wal-
Mart, as we discussed above. Nor does the relief requested depend
upon proofs particular to individual members. Unlike a suit for money
damages, which would require examination of each member’s unique
injury, this action seeks a declaratory judgment and injunctive relief,
the type of relief for which associational standing was originally rec-
ognized. See Warth, 422 U.S. at 515.

Finally, the Secretary argues that associational standing is not
appropriate because various RILA members supposedly have con-
flicting interests. See Md. Highways Contractors Ass’n, Inc. v. Mary-
12 RETAIL INDUSTRY LEADERS v. FIELDER
land, 933 F.2d 1246, 1252-53 (4th Cir. 1991). In Maryland Highways
Contractors, an association of contractors challenged a Maryland pro-
gram that preferred businesses owned primarily by minorities in
awarding state procurement contracts. Id. at 1248. We explained that
associational standing was not appropriate "when conflicts of interest
among members of the association require that the members must join
the suit individually in order to protect their own interests." Id. at
1252. That case, however, is readily distinguishable from this one.
While RILA members do compete in the marketplace, they uniformly
endorsed the present litigation. RILA’s board includes representatives
from numerous competitors of Wal-Mart, including Best Buy Com-
pany, IKEA, and Target Corporation, and the board voted unani-
mously to prosecute this action. Unlike Maryland Highways
Contractors, id. (noting that no minority-owned businesses were rep-
resented on the association’s board and that the board did not inform
its membership of the suit), this case presents no hint that RILA’s
board authorized this suit without the knowledge or support of any
RILA member or faction.

At bottom, the prudential considerations of the Hunt test for associ-
ational standing do not counsel against permitting RILA to bring this
suit, and we reject the Secretary’s challenge on that ground.

B

For reasons similar to those advanced to challenge RILA’s stand-
ing, the Secretary contends that RILA’s claims are not ripe for
review. He argues that because Wal-Mart is not certain to suffer
injury under the Fair Share Act, RILA’s action is not ripe. See Pacific
Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,
461 U.S. 190, 200 (1983) (noting the purpose of the ripeness doctrine
is "to prevent the courts, through avoidance of premature adjudica-
tion, from entangling themselves in abstract disagreements over
administrative policies").

A ripeness review consists of inquiries into "the fitness of the
issues for judicial decision" and "the hardship to the parties of with-
holding court consideration." Pacific Gas & Elec., 461 U.S. at 201.
An issue is not fit for review if "it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all."
 RETAIL INDUSTRY LEADERS v. FIELDER 13
Texas v. United States, 523 U.S. 296, 300 (1998). But if an issue is
"predominantly legal," not depending upon the potential occurrence
of factual events, it is more likely to be found ripe. Pacific Gas &
Elec., 461 U.S. at 201.

As we have explained, Wal-Mart will very likely incur liability to
the State under the Act’s minimum spending provision and is cer-
tainly subject to the reporting requirements. Accordingly, it must alter
its internal accounting procedures and healthcare spending now to
comply with the Act. The Secretary’s argument that the issues are
unripe because the regulations under the Act have not been promul-
gated do not change this. Regulations could not alter the Act’s provi-
sions, which clearly establish the healthcare spending and reporting
requirements that RILA claims are invalid. In addition, this appeal
presents purely legal questions that, because of their certain applica-
bility to Wal-Mart, are ripe for review. Accordingly, we also reject
the Secretary’s ripeness challenge.

C

Finally, the Secretary contends that this litigation is barred by the
Tax Injunction Act, 28 U.S.C. § 1341. He characterizes the Fair Share
Act as a state law that imposes a tax on employers. The district court
disagreed and concluded that the Fair Share Act constitutes a "health-
care regulation," rather than a "tax." We agree with the district court.

The Tax Injunction Act prohibits district courts from enjoining,
suspending, or restraining the assessment, levy, or collection of any
tax under state law where, as the Act provides, "a plain, speedy and
efficient remedy may be had in the courts of such State." 28 U.S.C.
§ 1341. Because the Tax Injunction Act is meant to prevent taxpayers
from "disrupting state government finances," Hibbs v. Winn, 542 U.S.
88, 104 (2004), its applicability depends primarily on whether a given
measure serves "revenue raising purposes" rather than "regulatory or
punitive purposes." See Valero Terrestrial Corp. v. Caffrey, 205 F.3d
130, 134 (4th Cir. 2000). The less a measure serves as a revenue-
raising provision, the less likely it is protected by the Tax Injunction
Act. See Hager v. City of W. Peoria, 84 F.3d 865, 870-72 (7th Cir.
1996) (finding the Tax Injunction Act did not bar review of a provi-
14 RETAIL INDUSTRY LEADERS v. FIELDER
sion because "the ordinances were passed to control certain activities,
not to raise revenues").

While the Valero court provided various inquiries to help deter-
mine whether a charge imposed by state law is a tax, i.e., primarily
a revenue-raising measure, or a fee or penalty, see Valero, 205 F.3d
at 134 ("(1) What entity imposes the charge; (2) what population is
subject to the charge; and (3) what purposes are served by the use of
the monies obtained by the charge" ), we can readily conclude, with-
out a seriatim analysis, that the Fair Share Act is not a tax provision.
There is overriding evidence that the Fair Share Act’s primary pur-
pose is to regulate employers’ healthcare spending, not to raise reve-
nue. This becomes especially demonstrable in light of the
improbability that the Act will generate any revenue. Wal-Mart’s
Director of Benefits Design testified that Wal-Mart would increase its
healthcare spending rather than make payments to the State, denying
the State any revenue from the measure. The circumstances surround-
ing the Act’s enactment confirms that this is precisely the result that
the General Assembly intended. Particularly persuasive is the Depart-
ment of Legislative Services’ description of the Act in which it stated,
"To the extent large employers do not spend at least 6% or 8% on
health insurance costs as required, Fair Share Health Care special
fund’s revenues could increase from employers paying the difference
between the required and actual amounts spent on health insurance"
(emphasis added). Thus, the official description of the Act as pre-
sented to the General Assembly represented that it mandated that
employers provide a certain level of benefits, and only if they violated
that mandate would the State collect monies. Such a mechanism is a
quintessential fee or penalty, not a tax.

The Secretary argues to the contrary by pointing to the fact that the
Fair Share Act itself declares its purpose to establish "the Fair Share
Health Care Fund" and that "the purpose of the Fund is to support the
operations of the [Maryland Medical Assistance] Program." 2006 Md.
Law 1. This superficial characterization, however, does not determine
the Act’s actual purpose and effect; its content and context do. We
conclude that the Fair Share Act cannot be properly characterized as
a "tax" provision as that term is used in the Tax Injunction Act.
 RETAIL INDUSTRY LEADERS v. FIELDER 15
In sum, we hold that RILA has standing; that RILA’s claim is ripe
for adjudication; and that RILA’s complaint is not barred by the Tax
Injunction Act.

III

On the merits of whether ERISA preempts the Fair Share Act, the
Secretary contends that the district court misunderstood the nature
and effect of the Fair Share Act, erroneously finding that the Act
mandates an employer’s provision of healthcare benefits and therefore
"relates to" ERISA plans. The Secretary offers a different character-
ization of the Fair Share Act — one with which ERISA is not con-
cerned. He describes the Act as "part of the State’s comprehensive
scheme for planning, providing, and financing health care for its citi-
zens." In his view, the Act imposes a payroll tax on covered employ-
ers and offers them a credit against that tax for their healthcare
spending. The revenue from this tax funds a Fair Share Health Care
Fund, which is used to offset the costs of Maryland’s Medical Assis-
tance Program.

To resolve the question whether ERISA preempts the Fair Share
Act, we consider first the scope of ERISA’s preemption provision, 29
U.S.C. § 1144(a), and then the nature and effect of the Fair Share Act
to determine whether it falls within the scope of ERISA’s preemption.

A

ERISA establishes comprehensive federal regulation of employers’
provision of benefits to their employees. It does not mandate that
employers provide specific employee benefits but leaves them free,
"for any reason at any time, to adopt, modify, or terminate welfare
plans." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78
(1995). Instead, ERISA regulates the employee benefit plans that an
employer chooses to establish, setting "various uniform standards,
including rules concerning reporting, disclosure, and fiduciary
responsibility." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983).

The vast majority of healthcare benefits that an employer extends
to its employees qualify as an "employee welfare benefit plan," which
ERISA defines broadly as:
16 RETAIL INDUSTRY LEADERS v. FIELDER
any plan, fund, or program which . . . was established or is
maintained for the purpose of providing for its participants
or their beneficiaries, through the purchase of insurance or
otherwise, . . . medical, surgical, or hospital care or bene-
fits, or benefits in the event of sickness, accident, disability,
death or unemployment, or vacation benefits, apprenticeship
or other training programs, or day care centers, scholarship
funds, or prepaid legal services . . . .

29 U.S.C. § 1002(1) (emphasis added). While an employer’s one-time
grant of some benefit that requires no administrative scheme does not
constitute an ERISA "plan," a grant of a benefit that occurs periodi-
cally and requires the employer to maintain some ongoing administra-
tive support generally constitutes a "plan." See Fort Halifax Packing
Co. v. Coyne, 482 U.S. 1, 12 (1987) (finding that a one-time sever-
ance payment upon a plant closing did not constitute an ERISA
"plan" because it did not require a "scheme" of ongoing administra-
tion); Elmore v. Cone Mills Corp., 23 F.3d 855, 861 (4th Cir. 1994)
(en banc) (explaining that even an employer’s informal provision of
benefits may be a "plan"); cf. Massachusetts v. Morash, 490 U.S. 107,
115-16 (1989) (finding that ordinary vacation benefits, paid out of an
employer’s general assets like wages rather than out of a dedicated
fund, do not qualify as an "employee benefit plan"). Because the defi-
nition of an ERISA "plan" is so expansive, nearly any systematic pro-
vision of healthcare benefits to employees constitutes a plan.

The primary objective of ERISA was to "provide a uniform regula-
tory regime over employee benefit plans." Aetna Health Inc. v.
Davila, 542 U.S. 200, 208 (2004); see also Shaw, 463 U.S. at 98-100
(reviewing the legislative history of ERISA’s preemption provision).
To accomplish this objective, § 514(a) of ERISA broadly preempts
"any and all State laws insofar as they may now or hereafter relate
to any employee benefit plan" covered by ERISA. 29 U.S.C.
§ 1144(a) (emphasis added). This preemption provision aims "to min-
imize the administrative and financial burden of complying with con-
flicting directives among States or between States and the Federal
Government" and to reduce "the tailoring of plans and employer con-
duct to the peculiarities of the law of each jurisdiction." Ingersoll-
Rand Co. v. McClendon, 498 U.S. 133, 142 (1990).
 RETAIL INDUSTRY LEADERS v. FIELDER 17
The language of ERISA’s preemption provision — covering all
laws that "relate to" an ERISA plan — is "clearly expansive." Travel-
ers, 514 U.S. at 655. The Supreme Court has focused judicial analysis
by explaining that a state law "relates to" an ERISA plan "if it has a
connection with or reference to such a plan." Shaw, 463 U.S. at 97.
But even these terms, "taken to extend to the furthest stretch of [their]
indeterminacy," would have preemption "never run its course." Trav-
elers, 514 U.S. at 655. Accordingly, we do not rely on "uncritical lit-
eralism" but attempt to ascertain whether Congress would have
expected the Fair Share Act to be preempted. See id. at 656; Califor-
nia Div. of Labor Standards Enforcement v. Dillingham Constr., 519
U.S. 316, 325 (1997). To make this determination, we look "to the
objectives of the ERISA statute" as well as "to the nature of the effect
of the state law on ERISA plans," Dillingham, 519 U.S. at 325, recog-
nizing that ERISA is not presumed to supplant state law, especially
in cases involving "fields of traditional state regulation," which
include "the regulation of matters of health and safety," De Buono v.
NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 n.8 (1997)
(citation and quotation marks omitted).

Through application of these principles, the Supreme Court has
held that not all state healthcare regulations are equal for purposes of
ERISA preemption. States continue to enjoy wide latitude to regulate
healthcare providers. See, e.g., De Buono, 520 U.S. at 815-16
(upholding a state tax on gross receipts for patient services at hospi-
tals, residential healthcare facilities, and diagnostic and treatment cen-
ters); Travelers, 514 U.S. at 658-59 (upholding a state mandate that
hospitals charge certain insurers at higher rates than Blue Cross &
Blue Shield). And ERISA explicitly saves state regulations of insur-
ance companies from preemption. See 29 U.S.C. § 1144(b)(2)(A);
Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739-47 (1985).
But unlike laws that regulate healthcare providers and insurance com-
panies, "state laws that mandate[ ] employee benefit structures or their
administration" are preempted by ERISA. Travelers, 514 U.S. at 658.
Such state-imposed regulation of employers’ provision of employee
benefits conflict with ERISA’s goal of establishing uniform, nation-
wide regulation of employee benefit plans. Id. at 657-58.

Thus, in Shaw, the Supreme Court held that ERISA preempted a
New York law requiring employers to structure their employee bene-
18 RETAIL INDUSTRY LEADERS v. FIELDER
fit plans to provide the same benefits for pregnancy-regulated disabil-
ities as for other disabilities. 463 U.S. at 97. A multi-state employer
could only comply with New York’s mandate by varying its benefits
for New York employees or by varying its benefits for all employees.
See Travelers, 514 U.S. at 657 (construing Shaw). In either event, the
New York law would interfere with the employer’s ability to adminis-
ter its ERISA plans uniformly on a nationwide basis. Id.

In line with Shaw, courts have readily and routinely found preemp-
tion of state laws that act directly upon an employee benefit plan or
effectively require it to establish a particular ERISA-governed bene-
fit. See, e.g., Metro. Life, 471 U.S. at 739 (concluding that a Massa-
chusetts law "related to" ERISA plans where it required an employer
healthcare fund that provided hospital expense benefits also to cover
mental health expenses); American Med. Sec., Inc. v. Bartlett, 111
F.3d 358, 360 (4th Cir. 1997) (striking down a Maryland statute that
had the "purpose and effect" of "forc[ing] state-mandated health bene-
fits on self-funded ERISA plans"). Likewise, Shaw dictates that
ERISA preempt state laws that directly regulate employers’ contribu-
tions to or structuring of their plans. See, e.g., Local Union 598 v. J.A.
Jones Constr. Co., 846 F.2d 1213, 1218 (9th Cir. 1988), aff’d mem.,
488 U.S. 881 (1988) (striking a state law that mandated minimum
contributions to an apprenticeship training fund); Stone & Webster
Engineering Corp. v. Ilsley, 690 F.2d 323, 328-29 (2d Cir. 1982),
aff’d mem., 463 U.S. 1220 (1983) (striking a Connecticut law that
required an employer to provide health and life insurance to a former
employee receiving workers’ compensation).

A state law that directly regulates the structuring or administration
of an ERISA plan is not saved by inclusion of a means for opting out
of its requirements. See Egelhoff v. Egelhoff, 532 U.S. 141, 150-51
(2001). In Egelhoff, the Court held that ERISA preempted a Washing-
ton statute that voided the designation of a spouse as a beneficiary of
a nonprobate asset, including ERISA-governed life insurance policies.
Id. at 142-43. Its effect was to require plan administrators to "pay
benefits to the beneficiaries chosen by state laws, rather than to those
identified in the plan documents." Id. at 147. Even though the statute
permitted employers to opt out of the law with specific plan language,
the Court struck the law down under ERISA’s preemption provision
because it still mandated that plan administrators "either follow
 RETAIL INDUSTRY LEADERS v. FIELDER 19
Washington’s beneficiary designation scheme or alter the terms of
their plans so as to indicate that they will not follow it." Id. at 150.
Additionally, a proliferation of laws like Washington’s would have
undermined ERISA’s objective of sparing plan administrators the task
of monitoring the laws of all 50 States and modifying their plan docu-
ments accordingly. Id. at 150-51.

In sum, a state law has an impermissible "connection with"2 an
ERISA plan if it directly regulates or effectively mandates some ele-
ment of the structure or administration of employers’ ERISA plans.
On the other hand, a state law that creates only indirect economic
incentives that affect but do not bind the choices of employers or their
ERISA plans is generally not preempted. See Travelers, 514 U.S. at
658. In deciding which of these principles is applicable, we assess the
effect of a state law on the ability of ERISA plans to be administered
uniformly nationwide. Even if a state law provides a route by which
ERISA plans can avoid the state law’s requirements, taking that route
might still be too disruptive of uniform plan administration to avoid
preemption. See Egelhoff, 532 U.S. at 151.

B

We now consider the nature and effect of the Fair Share Act to
determine whether it falls within ERISA’s preemption. At its heart,
2
A state law is preempted also if it contains a "reference to" an ERISA
plan, the alternative characterization referred to in Shaw for finding that
it "relates to" an ERISA plan. Shaw, 463 U.S. at 97. The district court
did not reach this issue because it found that preemption through the Fair
Share Act’s "connection with" ERISA plans. Because of our ruling in
this opinion, we likewise do not reach the question. But we note that this
standard applies more narrowly to preempt state law, examining the text
of the statute to determine whether its own terms bring ERISA plans
under its operation. See Dillingham, 519 U.S. at 325 (explaining that a
state law contains a "reference to" an ERISA plan if it "acts immediately
and exclusively upon ERISA plans" or if "the existence of ERISA plans
is essential to the law’s operation"); see also District of Columbia v.
Greater Washington Bd. of Trade, 506 U.S. 125, 128 (1992) (invalidat-
ing a law that required an employer "who provides health insurance cov-
erage for an employee" to provide the equivalent insurance while the
employee was receiving workers compensation benefits).
20 RETAIL INDUSTRY LEADERS v. FIELDER
the Fair Share Act requires every employer of 10,000 or more Mary-
land employees to pay to the State an amount that equals the differ-
ence between what the employer spends on "health insurance costs"
(which includes any costs "to provide health benefits") and 8% of its
payroll. Md. Code Ann., Lab. & Empl. §§ 8.5-101, 8.5-104. As Wal-
Mart noted by way of affidavit, it would not pay the State a sum of
money that it could instead spend on its employees’ healthcare. This
would be the decision of any reasonable employer. Healthcare bene-
fits are a part of the total package of employee compensation an
employer gives in consideration for an employee’s services. An
employer would gain from increasing the compensation it offers
employees through improved retention and performance of present
employees and the ability to attract more and better new employees.
In contrast, an employer would gain nothing in consideration of pay-
ing a greater sum of money to the State. Indeed, it might suffer from
lower employee morale and increased public condemnation.

In effect, the only rational choice employers have under the Fair
Share Act is to structure their ERISA healthcare benefit plans so as
to meet the minimum spending threshold.3 The Act thus falls squarely
under Shaw’s prohibition of state mandates on how employers struc-
ture their ERISA plans. See Shaw, 463 U.S. at 96-97. Because the
Fair Share Act effectively mandates that employers structure their
employee healthcare plans to provide a certain level of benefits, the
Act has an obvious "connection with" employee benefit plans and so
is preempted by ERISA.

This view of the Fair Share Act is reinforced by the position of the
State of Maryland itself. The Maryland General Assembly intended
the Act to have precisely this effect. As we noted in Part I, the context
for enactment of the Act, including the Department of Legislative
3
Theoretically, a covered employer whose healthcare spending for
employees falls short of the 8% minimum could, by other steps, avoid
regulation without restructuring or altering the administration of its
ERISA plans. It could move plants from the State to bring its employee
number under 10,000; it could reduce wages to increase the proportion
of its payroll devoted to healthcare spending; it could violate the Act and
incur a civil penalty; or it could leave the State altogether. But not even
the Secretary advances these arguments.
 RETAIL INDUSTRY LEADERS v. FIELDER 21
Services’ official description of it, shows that legislators and inter-
ested parties uniformly understood the Act as requiring Wal-Mart to
increase its healthcare spending. If this is not the Act’s effect, one
would have to conclude, which we do not, that the Maryland legisla-
ture misunderstood the nature of the bill that it carefully drafted and
debated. For these reasons, the amount that the Act prescribes for
payment to the State is actually a fee or a penalty that gives the
employer an irresistible incentive to provide its employees with a
greater level of health benefits.

It is a stretch to claim, as the Secretary does, that the Fair Share Act
is a revenue statute of general application. When it was enacted, the
General Assembly knew that it applied, and indeed intended that it
apply, to one employer in Maryland — Wal-Mart. The General
Assembly designed the statute to avoid applying the 8% level to
Johns Hopkins University; it knew that Giant Food was unionized and
already was providing more than 8%; and it amended the statute to
avoid including Northrop Grumman. Even as the statute is written, the
category of employers employing 10,000 employees in Maryland
includes only four persons in Maryland and therefore could hardly be
intended to function as a revenue act of general application.

While the Secretary argues that the Fair Share Act is designed to
collect funds for medical care under the Maryland Medical Assistance
Program, the core provision of the Act aims at requiring covered
employers to provide medical benefits to employees. The effect of
this provision will force employers to structure their recordkeeping
and healthcare benefit spending to comply with the Fair Share Act.
Functioning in that manner, the Act would disrupt employers’ uni-
form administration of employee benefit plans on a nationwide basis.
As Wal-Mart officials averred, Wal-Mart does not presently allocate
its contributions to ERISA plans or other healthcare spending by
State, and so the Fair Share Act would require it to segregate a sepa-
rate pool of expenditures for Maryland employees.

This problem would not likely be confined to Maryland. As a result
of similar efforts elsewhere to pressure Wal-Mart to increase its
healthcare spending, other States and local governments have adopted
or are considering healthcare spending mandates that would clash
with the Fair Share Act. For example, two New York counties
22 RETAIL INDUSTRY LEADERS v. FIELDER
recently adopted provisions to require Wal-Mart to spend an amount
on healthcare to be determined annually by an administrative agency.
See N.Y.C. Admin. Code § 22-506(c)(2); Suffolk County, N.Y., Reg.
Local Laws § 325-3. Similar legislation under consideration in Min-
nesota calculates total wages, from which an employer’s minimum
spending level is determined, with reference to Minnesota’s median
household income. See H.F. 3143, 84th Leg. Sess. (Minn. 2006). If
permitted to stand, these laws would force Wal-Mart to tailor its
healthcare benefit plans to each specific State, and even to specific
cities and counties. This is precisely the regulatory balkanization that
Congress sought to avoid by enacting ERISA’s preemption provision.
See Shaw, 463 U.S. at 98-100.

The Secretary argues that the Act is not mandatory and therefore
does not, for preemption purposes, have a "connection with"
employee benefit plans because it gives employers two options to
avoid increasing benefits to employees. An employer can, under the
Fair Share Act, (1) increase healthcare spending on employees in
ways that do not qualify as ERISA plans; or (2) refuse to increase
benefits to employees and pay the State the amount by which the
employer’s spending falls short of 8%. Because employers have these
choices, the Secretary argues, the Fair Share Act does not preclude
Wal-Mart from continuing its uniform administration of ERISA plans
nationwide. He maintains that the Fair Share Act is more akin to the
laws upheld in Travelers, 514 U.S. at 658-59, and Dillingham, 519
U.S. at 319, which merely created economic incentives that affected
employers’ choices while not effectively dictating their choice. This
argument fails for several reasons.

First, the laws involved in Travelers and Dillingham are inapposite
because they dealt with regulations that only indirectly regulated
ERISA plans. In Travelers, a New York law required hospitals to add
a surcharge to the fees they demanded from most insurance compa-
nies, but the law exempted Blue Cross and Blue Shield from having
to pay the surcharge. Travelers, 514 U.S. at 658-59. The effect of the
law was to make Blue Cross and Blue Shield a cheaper and more
attractive option for ERISA-covered healthcare plans to purchase.
The Supreme Court upheld the law because it did not act directly
upon employers or their plans but merely created "an indirect eco-
nomic influence" on plans. Id. at 659. The New York law did not
 RETAIL INDUSTRY LEADERS v. FIELDER 23
"bind plan administrators to any particular choice." Id. Nor did this
incentive to choose Blue Cross/Blue Shield "preclude uniform admin-
istrative practice" on a nationwide basis. Id. The Court acknowledged,
however, that a state law could produce such "acute, albeit indirect,
economic effects . . . as to force an ERISA plan to adopt a certain
scheme of substantive coverage or effectively restrict its choice of
insurers" and therefore be preempted by ERISA. Id. at 668. In short,
while the state law in Travelers directly regulated hospitals’ charges
to insurance companies, it only indirectly affected the prices ERISA
plans would pay for insurance policies.

Likewise, in Dillingham, a California law directly regulated wages
that contractors paid to apprentices on public construction projects,
which only indirectly affected ERISA-covered apprenticeship pro-
grams’ incentives to obtain state certification. 519 U.S. at 332-34. The
law permitted contractors to pay apprentices a lower-than-prevailing
wage if the apprentices participated in a state-certified apprentice pro-
gram. Id. at 319-20. The effect of the law was to create an indirect
incentive for ERISA-governed programs to obtain state certification.
Id. at 332-33. This incentive, the Court concluded, was not so strong
that it effectively eliminated the programs’ choice as to whether to
seek state certification. Id. Noncertified apprentice programs were
still free to supply apprentices for private projects at no disadvantage
and to supply apprentices for public projects with just a slight disad-
vantage. Id. at 332. Accordingly, the Court upheld the prevailing
wage law as more akin to the law in Travelers than to the law in
Shaw. Id. at 334.

In contrast, to Travelers and Dillingham, the Fair Share Act
directly regulates employers’ structuring of their employee health
benefit plans. This tighter causal link between the regulation and
employers’ ERISA plans makes the Fair Share Act much more analo-
gous to the regulations at issue in Shaw and Egelhoff, both of which
were found to be preempted by ERISA.

Second, the choices given in the Fair Share Act, on which the Sec-
retary relies to argue that the Act is not a mandate on employers, are
not meaningful alternatives by which an employer can increase its
healthcare spending to comply with the Fair Share Act without affect-
ing its ERISA plans. It is true that an employer could maintain on-site
24 RETAIL INDUSTRY LEADERS v. FIELDER
medical clinics, the expenditures for which would qualify as "health
insurance costs" under the Fair Share Act because they are deductible
under § 213(d) of the Internal Revenue Code. 26 U.S.C. § 213(d);
Md. Code Ann., Lab. & Empl. § 8.5-101. At the same time, such
expenditures would not amount to the establishment of an "employee
welfare benefit plan" under ERISA. See 29 C.F.R. § 2510.3-1(c)(2).
The ERISA regulation, however, defines non-ERISA clinics quite
narrowly as "the maintenance on the premises of an employer of facil-
ities for the treatment of minor injuries or illness or rendering first aid
in case of accidents occurring during working hours." Id. And the
Department of Labor strictly interprets the regulation not to cover a
facility that treats members of employees’ families or more than
"minor injuries." See Labor Dep’t Op. No. 83-35A, 1983 WL 22520
(1983). Thus, qualifying clinics could not provide more than simple,
circumscribed care that would not involve substantial expenditures.
They simply would not be a serious means by which employers could
increase healthcare spending to comply with the Fair Share Act.

In addition to on-site medical clinics, employers could, under the
Fair Share Act, contribute to employees’ Health Savings Accounts as
a means of non-ERISA healthcare spending. Under federal tax law,
eligible individuals may establish and make pretax contributions to a
Health Savings Account and then use those monies to pay or reim-
burse medical expenses. See 26 U.S.C. § 223. Employers’ contribu-
tions to employees’ Health Savings Accounts qualify as healthcare
spending for purposes of the Fair Share Act. See Md. Code Ann., Lab.
& Empl. § 8.5-101(d)(2). This option of contributing to Health Sav-
ings Accounts, however, is available under only limited conditions,
which undermine the impact of this option. For example, only if an
individual is covered under a high deductible health plan and no other
more comprehensive health plan is he eligible to establish a Health
Savings Account. See 26 U.S.C. § 223(c)(1). This undoubtedly
reduces greatly the pool of Wal-Mart employees who would be eligi-
ble to establish Health Savings Accounts. In addition, for an employ-
er’s contribution to a Health Savings Account to be exempt from
ERISA, the Health Savings Account must be established voluntarily
by the employee. See U.S. Dep’t of Labor, Employee Benefits Sec.
Admin., Field Assistance Bulletin 2004-1. This would likely shrink
further the potential for Health Savings Accounts contributions as
 RETAIL INDUSTRY LEADERS v. FIELDER 25
many employees would not undertake to establish Health Savings
Accounts.

More importantly, even if on-site medical clinics and contributions
to Health Savings Accounts were a meaningful avenue by which Wal-
Mart could incur non-ERISA healthcare spending, we would still con-
clude that the Fair Share Act had an impermissible "connection with"
ERISA plans. The undeniable fact is that the vast majority of any
employer’s healthcare spending occurs through ERISA plans. Thus,
the primary subjects of the Fair Share Act are ERISA plans, and any
attempt to comply with the Act would have direct effects on the
employer’s ERISA plans. If Wal-Mart were to attempt to utilize non-
ERISA health spending options to satisfy the Fair Share Act, it would
need to coordinate those spending efforts with its existing ERISA
plans. For example, an individual would be eligible to establish a
Health Savings Account only if he is enrolled in a high deductible
health plan. See 29 U.S.C. § 223(c)(1). In order for Wal-Mart to make
widespread contributions to Health Savings Accounts, it would have
to alter its package of ERISA health insurance plans to encourage its
employees to enroll in one of its high deductible health plans. From
the employer’s perspective, the categories of ERISA and non-ERISA
healthcare spending would not be isolated, unrelated costs. Decisions
regarding one would affect the other and thereby violate ERISA’s
preemption provision.

Further, the Fair Share Act and a proliferation of similar laws in
other jurisdictions would force Wal-Mart or any employer like it to
monitor these varying laws and manipulate its healthcare spending to
comply with them, whether by increasing contributions to its ERISA
plans or navigating the narrow regulatory channel between the Fair
Share Act’s definition of healthcare spending and ERISA’s definition
of an employee benefit plan. In this way, the Fair Share Act is directly
analogous to the Washington State statute in Egelhoff, 532 U.S. at
147-48, that revoked a spouse’s beneficiary designation upon divorce.
Even though the Washington statute included an opt-out provision,
the Court held the law to be preempted because it required plan
administrators to "maintain a familiarity with the laws of all 50 States
so that they can update their plans as necessary to satisfy the opt-out
requirements of other, similar statutes." Id. at 151. The Fair Share Act
likewise would deny Wal-Mart the uniform nationwide administration
26 RETAIL INDUSTRY LEADERS v. FIELDER
of its healthcare plans by requiring it to keep an eye on conflicting
state and local minimum spending requirements and adjust its health-
care spending accordingly.

Perhaps recognizing the insufficiency of a non-ERISA healthcare
spending option, the Secretary relies most heavily on its argument
that the Fair Share Act gives employers the choice of paying the State
rather than altering their healthcare spending. The Secretary contends
that, in certain circumstances, it would be rational for an employer to
choose to do so. It conceives that an employer, whose healthcare
spending comes close to the 8% threshold, may find it more cost-
effective to pay the State the required amount rather than incur the
costs of altering the administration of its healthcare plans. The exis-
tence of this stylized scenario, however, does nothing to refute the
fact that in most scenarios, the Act would cause an employer to alter
the administration of its healthcare plans. Indeed, identifying the nar-
row conditions under which the Act would not force an employer to
increase its spending on healthcare plans only reinforces the conclu-
sion that the overwhelming effect of the Act is to mandate spending
increases. This conclusion is further supported by the fact that Wal-
Mart representatives averred that Wal-Mart would in fact increase
healthcare spending rather than pay the State.

In short, the Fair Share Act leaves employers no reasonable choices
except to change how they structure their employee benefit plans.

Because the Act directly regulates employers’ provision of health-
care benefits, it has a "connection with" covered employers’ ERISA
plans and accordingly is preempted by ERISA.

IV

On its cross-appeal, RILA contends that the district court erred in
finding that the Fair Share Act does not violate the Equal Protection
Clause. Because we have concluded that the Fair Share Act is pre-
empted by ERISA, we need not consider RILA’s equal-protection
claim.

V

The Maryland General Assembly, in furtherance of its effort to
require Wal-Mart to spend more money on employee health benefits
 RETAIL INDUSTRY LEADERS v. FIELDER 27
and thus reduce Wal-Mart’s employees’ reliance on Medicaid,
enacted the Fair Share Act. Not disguised was Maryland’s purpose to
require Wal-Mart to change, at least in Maryland, its employee bene-
fit plans and how they are administered. This goal, however, directly
clashes with ERISA’s preemption provision and ERISA’s purpose of
authorizing Wal-Mart and others like it to provide uniform health
benefits to its employees on a nationwide basis.

Were we to approve Maryland’s enactment solely for its noble pur-
pose, we would be leading a charge against the foundational policy
of ERISA, and surely other States and local governments would fol-
low. As sensitive as we are to the right of Maryland and other States
to enact laws of their own choosing, we are also bound to enforce
ERISA as the "supreme Law of the Land." U.S. Const. art. VI.

The judgment of the district court is

AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

Maryland, like most states, is wrestling with explosive growth in
the cost of Medicaid. Innovative ideas for solving the funding crisis
are required, and the federal government, as the co-sponsor of Medic-
aid, has consistently called upon the states to function as laboratories
for developing workable solutions. In response to this call and its own
funding predicament, Maryland enacted the Fair Share Health Care
Fund Act (Maryland Act or Act) in 2006 to require very large
employers, such as Wal-Mart Stores, Inc., to assume greater responsi-
bility for employee health insurance costs that are now shunted to
Medicaid. I respectfully dissent from the majority’s opinion that the
Maryland Act is preempted by ERISA. The Act offers a covered
employer the option to pay an assessment into a state fund that will
support Maryland’s Medicaid program. Thus, the Act offers a means
of compliance that does not impact ERISA plans, and it is not pre-
empted.

I.

"Medicaid is a means-tested entitlement program financed by the
states and federal government" that provides medical care for about
28 RETAIL INDUSTRY LEADERS v. FIELDER
60 million Americans, a number made up of low-income adults and
their dependent children. Nat’l Governors Ass’n & Nat’l Ass’n of
State Budget Officers, The Fiscal Survey of States 4 (2006). Medicaid
was originally intended to provide help to the most vulnerable rather
than to a broader population of the working poor and their families.
In short, Congress intended for the Medicaid program to serve only
as the "payer of last resort." See S. Rep. No. 99-146, at 312-13 (1985),
as reprinted in 1986 U.S.C.C.A.N. 42, 279-80. Over time, however,
Medicaid has become the payer of first resort for a large percentage
of patients. In 2006 state and federal Medicaid spending totaled an
estimated $320 billion. Medicaid — the fastest-growing expense for
many states — dominates the state budgeting process around the
country. Program expenditures currently make up about twenty-two
percent of total state spending annually, and these outlays are pro-
jected to grow at a rate of eight percent over the next decade. Already,
between one-quarter and one-third of the states have experienced sig-
nificant shortfalls in their annual Medicaid appropriations, suggesting
that those with lower incomes are being pushed to Medicaid at an
unexpected (and alarming) rate.

The increase in Medicaid spending is caused in part by the decline
in employer-sponsored health insurance. In Maryland’s words, Med-
icaid "has been transformed into a corporate subsidy, with taxpayer-
funded employee health care an integral component of [many] an
employer’s benefits program." Reply Br. of Appellant at 4. Wal-Mart,
which is subject to the Maryland Act, is cited as a company that
abuses the Medicaid program. "Wal-Mart has more employees and
dependents on subsidized Medicaid or similar programs than any
other company nationwide." J.A. 321. A Georgia survey "found that
more than 10,000 children of Wal-Mart employees were enrolled in
the state’s children’s health insurance program . . . at a cost of nearly
$10 million annually." J.A. 89. Similarly, a study by a North Carolina
hospital found that thirty-one percent of Wal-Mart employees were
enrolled in Medicaid and an additional sixteen percent were unin-
sured. In an internal company memo of fairly recent origin, Wal-Mart
acknowledged that "[t]wenty-seven percent of [its employees’] chil-
dren are on [Medicaid]," and an additional nineteen percent are unin-
sured. J.A. 321.
 RETAIL INDUSTRY LEADERS v. FIELDER 29
II.

Maryland has its own Medicaid funding crisis. The state’s Medical
Assistance (Medicaid and children’s health) Program now consumes
about seventeen percent of the state general fund, and it is one of the
fastest growing components of the budget. Maryland’s 2007 Medical
Assistance expenditures are expected to total $4.7 billion. Over the
next five years the state’s Medicaid costs are projected to grow at a
rate that exceeds growth in general fund revenues by about three per-
cent. Increasing enrollment in the program is a contributing factor.
Enrollment growth is being spurred by the continuing rise in the num-
ber of children qualifying for Medicaid due to low family income. As
employers drop or fail to offer affordable family health care coverage,
more and more children of low income employees are forced into
Medicaid or other taxpayer-funded insurance. Rising health care costs
and the increase in the number of uninsured residents of all ages are
also factors that accelerate the growth in Maryland’s Medicaid bud-
get. Even though many of the uninsured may not qualify for Medic-
aid, they nevertheless drive up Medicaid costs under Maryland’s "all-
payor" system. The all-payor system requires those who pay their
hospital bills in Maryland to subsidize the cost of hospital care ren-
dered to uninsured patients. The costs of treating those who cannot
pay are added into the state-approved rates charged to those who can
pay through insurance or other means. See Md. Code Ann. Health-
Gen. §§ 19-211, 214, 219. The all-payor rates rise as the number of
uninsured persons increases. Medicaid, as a significant purchaser of
medical care in Maryland, is thus forced to bear an ever greater bur-
den as the number of patients without employer-backed health insur-
ance increases.

Maryland’s annual Medicaid obligations are exceeding legislative
appropriations by enormous sums. The shortfall in 2006 was esti-
mated to be around $130 million. The state has made up the deficit
in part by transferring money from other programs. Such stopgap
measures, however, are becoming less sustainable with each passing
month. To deal with the crisis, Maryland, like many other states, has
sought new ways to constrain health care costs and generate addi-
tional revenue for its Medicaid program.

The Maryland Act is part of the state’s effort to deal with the
mounting funding pressures. The Act establishes the Fair Share
30 RETAIL INDUSTRY LEADERS v. FIELDER
Health Care Fund to "support the operations of the [Maryland Medi-
cal Assistance] Program." Md. Code Ann. Health-Gen. § 15-142(c).
The fund will receive revenue from assessments on large employers
that fail to meet the Act’s spending requirements for health insurance.
Id. § 15-142(e). The Act requires each employer with 10,000 or more
employees in Maryland to submit an annual report specifying its
Maryland employee number, the amount it spent on health insurance
in Maryland, and the percentage of payroll it spent on health insur-
ance in the state. Md. Code Ann. Lab. & Empl. § 8.5-103. Currently,
four employers in Maryland are subject to the Act. A for-profit
employer, of which there are three, must spend eight percent or more
of total wages on health insurance or pay the difference to the Secre-
tary of Labor, Licensing, and Regulation. Id. § 8.5-104(b). Health
insurance costs include all tax deductible spending on employee
health insurance or health care allowed by the Internal Revenue Code.
Id. § 8.5-101(d). Nothing in the Act demonstrates an intent to restrict
its application solely to Wal-Mart.

The Act instructs the Secretary to place any revenue collected in
a special fund to defray the costs of Maryland’s Medicaid program.
Md. Code Ann. Health-Gen. § 15-142. In this way, the Act will sup-
port the state’s Medical Assistance Program either by directly defray-
ing Medicaid costs or by prompting covered employers to spend more
on employee health insurance.

III.

I agree with the majority that the claims asserted by the Retail
Industry Leaders Association (RILA) are justiciable, but not for all of
the same reasons. RILA has associational standing to sue because it
alleges that one of its members, Wal-Mart, faces the imminent injury
of being forced to comply with the Act’s reporting requirements and
either to pay an assessment or to increase its spending on employee
health insurance. This allegation is sufficient to satisfy the injury ele-
ment necessary for standing. There is thus no need to rely on RILA’s
argument that the Act will injure Wal-Mart by impeding its ability to
administer its employee benefit plans in a uniform fashion. The Act
will not cause such an injury, as I explain later on.

My conclusion that this action is not barred by the Tax Injunction
Act also rests on different reasons. The majority is wrong to charac-
 RETAIL INDUSTRY LEADERS v. FIELDER 31
terize the Act’s stated revenue raising purpose as superficial. The Act
legitimately anticipates a potential revenue stream, despite making
available an alternative mode of compliance that does not generate
revenue. The Act’s revenue raising component is directly connected
to the regulatory purpose of assessing employers that rely dispropor-
tionately on state-subsidized programs to provide health care for their
employees.

"To determine whether a particular charge is a ‘fee’ or a ‘tax,’ the
general inquiry is to assess whether the charge is for revenue raising
purposes, making it a ‘tax,’ or for regulatory or punitive purposes,
making it a ‘fee.’" Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130,
134 (4th Cir. 2000). An assessment is more likely to be a fee than a
tax if it is imposed by an administrative agency, it is aimed at a small
group rather than the public at large, and any revenue collected is
placed in a special fund dedicated to the purposes of the regulation.
Collins Holding Corp. v. Jasper County, 123 F.3d 797, 800 (4th Cir.
1997).

In this case the Act was passed by the legislature and has revenue
raising potential. Other indicators suggest, however, that the Act’s
assessment scheme is more in the nature of a regulatory fee than a tax.
The Act applies to a very small group — only four employers. The
assessment may generate revenue, but its primary purpose is punitive
in nature. It assesses employers that provide substandard health bene-
fits or none at all. Any revenue collected serves to recoup costs
incurred by the state due to such behavior; collections are not depos-
ited in the general fund. The regulatory purpose is further evidenced
by the Act’s creation of a special fund administered by the Secretary
of Labor, Licensing, and Regulation and dedicated to defraying the
state’s Medicaid costs. These characteristics show the significant dif-
ferences between the assessment imposed by the Act and a typical tax
imposed on a large segment of the population and used to benefit the
general public. See Valero, 205 F.3d at 135. Because the assessment
is not a tax, I therefore agree with the majority’s ultimate conclusion
that the Tax Injunction Act does not deprive the federal courts of
jurisdiction to consider this case.

IV.

I respectfully dissent on the issue of ERISA preemption because
the Act does not force a covered employer to make a choice that
32 RETAIL INDUSTRY LEADERS v. FIELDER
impacts an employee benefit plan. An employer can comply with the
Act either by paying assessments into the special fund or by increas-
ing spending on employee health insurance. The Act expresses no
preference for one method of Medicaid support or the other. As a
result, the Act is not preempted by ERISA.

ERISA supersedes "any and all State laws insofar as they . . . relate
to any employee benefit plan." 29 U.S.C. § 1144(a). State laws "relate
to" ERISA plans if they have a "connection with" or make "reference
to" such plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97
(1983). The Maryland Act does neither.

A state statute has an impermissible connection with an ERISA
plan when it requires the establishment of a plan, mandates particular
employee benefits, or impacts plan administration. See Fort Halifax
Packing Co. v. Coyne, 482 U.S. 1, 14 (1987) (state can require one-
time, lump sum severance payments because they would not require
the establishment or maintenance of a plan); Egelhoff v. Egelhoff, 532
U.S. 141, 147-50 (2001) (state cannot automatically revoke a benefi-
ciary designation of an ex-spouse in a plan policy); Shaw, 463 U.S.
at 97, 100 (state cannot require ERISA plans to cover pregnancy).
The Act offers a compliance option that does not require an employer
to maintain an ERISA plan, administer plans according to state-
prescribed rules, or offer a certain level of ERISA benefits. Also, the
Act does not contain an impermissible reference to ERISA plans. It
allows an employer to maintain a uniform national plan, albeit at a
cost. It is thus not the sort of law that Congress intended to preempt.
Indeed, the Act is a legitimate response to congressional expectations
that states develop creative ways to deal with the Medicaid funding
problem.

A.

The Act does not compel an employer to establish or maintain an
ERISA plan in order to comply with its provisions. ERISA plan
expenditures are considered in the calculation of an employer’s total
level of health insurance spending, but this factor does not create an
impermissible connection with an ERISA plan. See Burgio & Cam-
pofelice, Inc. v. N.Y. State Dep’t of Labor, 107 F.3d 1000, 1009 (2d
Cir. 1997); Keystone Chapter, Associated Builders & Contractors,
 RETAIL INDUSTRY LEADERS v. FIELDER 33
Inc. v. Foley, 37 F.3d 945, 961 (3d Cir. 1994). The Act offers a com-
pliance option that is not predicated on the existence of an ERISA
plan. Again, an employer may comply by paying an assessment into
Maryland’s Fair Share Health Care Fund.

B.

The Act does not impede an employer’s ability to administer its
ERISA plans under nationally uniform provisions. A problem would
arise if the Act dictated a plan’s system for processing claims, paying
benefits, or determining beneficiaries. See Egelhoff, 532 U.S. at 147,
150. But the Act does none of those things. The only aspect of the Act
that might impact plan administration is the requirement for reporting
data about Maryland employee numbers, payroll, and ERISA plan
spending. However, any burden this requirement puts on plan admin-
istration is simply too slight to trigger ERISA preemption. See Foley,
37 F.3d at 963 (requiring employers to record benefits contributions
will not influence decisions about the structure of ERISA plans and
so will not impede the administration of nationwide plans); see also
Minn. Chapter of Associated Builders & Contractors, Inc. v. Minn.
Dep’t of Labor & Industry, 866 F. Supp. 1244, 1247 (D. Minn. 1993)
("The requirement of calculating [the cost of benefits] falls on the
employer itself, but does not place any administrative burden on the
plan. The requirements of calculating costs and keeping records may
somewhat increase the cost of the benefits plans, but this incidental
impact on the plans need not lead to preemption.").

C.

The Act does not mandate a certain level of ERISA benefits. A
statute that "alters the incentives, but does not dictate the choices, fac-
ing ERISA plans" is not preempted. Calif. Div. of Labor Standards
Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 334
(1997). The ERISA preemption provision allows for uniformity of
administration and coverage, but "cost uniformity was almost cer-
tainly not an object of pre-emption." N.Y. State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 662
(1995).

Under the Act employers have the option of either paying an
assessment or increasing ERISA plan health insurance. This choice is
34 RETAIL INDUSTRY LEADERS v. FIELDER
real. The assessment does not amount to an exorbitant fee that leaves
a large employer with no choice but to alter its ERISA plan offerings.
See id. at 664. According to Wal-Mart estimates, the company faces,
at most, a potential assessment of one percent of its Maryland payroll.
Paying the assessment would thus not be a financial burden that
leaves Wal-Mart with a Hobson’s choice, that is, no real choice but
to increase health insurance benefits. Wal-Mart contends that it would
never choose to pay the assessment when given the option of gaining
employee goodwill through increased benefits. To begin with, Wal-
Mart’s bald claim that it would increase benefits appears dubious.
Wal-Mart has not seen fit thus far to use comprehensive health insur-
ance as a means of generating employee goodwill. More important,
Wal-Mart’s claim that it would increase benefits rather than pay the
fee is irrelevant because the choice to increase benefits is not com-
pelled by the Act. That choice would simply be a business judgment
that Wal-Mart is free to make. Indeed, an employer close to the
required statutory percentage, such as Wal-Mart, may find it easier to
pay the assessment than to increase health insurance spending. So
long as the assessment is not so high as to make its selection finan-
cially untenable, an employer may freely evaluate whether the ability
to maintain current levels of health insurance spending is worth the
price of the assessment.

The majority attempts to distinguish Travelers and Dillingham by
contrasting the indirect regulation of ERISA plans in those cases with
what it deems a direct regulation here. I disagree with the majority’s
assertion that the Maryland Act directly regulates ERISA plans.
"Where a legal requirement may be easily satisfied through means
unconnected to ERISA plans, and only relates to ERISA plans at the
election of an employer, it ‘affect[s] employee benefit plans in too
tenuous, remote, or peripheral a manner to warrant a finding that the
law "relates to" the plan.’" Foley, 37 F.3d at 960 (quoting Shaw, 463
U.S. at 100 n. 21). Moreover, Travelers and Dillingham focused not
on nebulous distinctions between direct and indirect effects, but on
establishing a general rule for ERISA preemption that "look[s] both
to the objectives of the ERISA statute as a guide to the scope of the
state law that Congress understood would survive as well as to the
nature of the effect of the state law on ERISA plans." Dillingham, 519
U.S. at 325 (emphasis added) (quotation marks and citations omitted).
The statutes in Travelers and Dillingham were permissible regulations
 RETAIL INDUSTRY LEADERS v. FIELDER 35
of ERISA plans primarily because they did not mandate a particular
level of benefits or impact plan administration, not because of the
non-ERISA targets of the regulations. See Travelers, 514 U.S. at 664;
Dillingham, 519 U.S. at 332-33.

We must similarly focus our inquiry on any threat the Maryland
Act poses to the purposes of the ERISA preemption provision rather
than on hazy distinctions between direct and indirect regulations. See
Travelers, 514 U.S. at 656. Congress generally does not intend to pre-
empt acts in traditional areas of state regulation, such as health and
safety. De Buono v. NYSA-ILA Medical & Clinical Servs. Fund, 520
U.S. 806, 813-14 (1997). The purpose of the Act, to relieve state
Medicaid burdens and improve health care for low income residents,
falls into this category. Travelers and Dillingham demonstrate that so
long as the regulation impacts a traditional area of state concern, and
employers are left with an effective choice that avoids ERISA impli-
cations, the regulation may stand.

Rather than fitting within the ERISA preemption target, the Mary-
land Act is in line with Congress’s intention that states find innova-
tive ways to solve the Medicaid funding crisis. Congress already
directs states to "take all reasonable measures to ascertain the legal
liability of [and to seek reimbursement from] third parties (including
health insurers . . . or other parties that are, by statute, contract, or
agreement, legally responsible for payment of a claim for a health
care item or service) to pay for care and services available under
[Medicaid]." 42 U.S.C. §§ 1396a(a)(25)(A) & (B). I recognize, of
course, that the Maryland Act goes beyond this basic directive, but it
is nevertheless a legitimate response to the consistent encouragement
Congress has given to the states to find "novel approaches" and to
"develop innovative and effective solutions" to deal with the worsen-
ing Medicaid funding problem. S. Rep. No. 99-146, at 462 (1985), as
reprinted in 1986 U.S.C.C.A.N. 42, 421 (remarks of Sen. Orrin G.
Hatch); see also Travelers, 514 U.S. at 665 (recognizing that Con-
gress has "sought to encourage . . . state responses to growing health
care costs and the widely diverging availability of health services").

D.

The Act also contains no impermissible reference to an ERISA
plan. Such a reference occurs only when a statute explicitly refers to
36 RETAIL INDUSTRY LEADERS v. FIELDER
or relies upon the existence of an ERISA plan. District of Columbia
v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 (1992) (statute pre-
empted because it applied to "health insurance coverage," which is an
ERISA plan). Obligations under the Act are tied to a covered employ-
er’s level of tax deductible health insurance spending. The Act does
not make any explicit statement about ERISA plans or rely on their
existence.

E.

As the record makes clear, Maryland is being buffeted by escalat-
ing Medicaid costs. The Act is a permissible response to the problem.
Because a covered employer has the option to comply with the Act
by paying an assessment — a means that is not connected to an
ERISA plan — I would hold that the Act is not preempted.