In case there are any proponents of "universal" health care who have not yet understood: ordering employers to provide health benefits is against the law.  Yesterday, a federal court overturned a key element of the San Francisco Health Access Program (SF HAP). SF HAP would have imposed a "pay or play" mandate of at least $1.17 hourly in 2008, and rising in later years, on employers with at least 20 workers.  Unfortunately for the city's bureaucrats, but happily for workers and small businesses, this violates ERISA (the Employee Retirement Income Security Act of 1974).

Utterly predictable: a "pay or play" mandate in Maryland was trumped on the same grounds last January.  Remarkably, proponents of these tax hikes just do not quit.  Governor Schwarzenegger has endorsed the Democrat-dominated Assembly's horrific ABX1 1, a massively expensive plan for quasi-"universal" coverage that also relies on a "pay or play" mandate.

Doesn't the City & County of San Francisco or the State of California engage lawyers who can tell them that these "reforms" are deeply flawed? Of course, they do.  That is not the point: Proponents of "universal" health care are playing a long game, and their legal fees come from your tax dollars, so they can play as long as they want.

ERISA was made by Congress, and Congress can punch holes in it whenever it decides.  A Democrat-dominated Congress is more likely to do so as more of these cases come up.  Nor can those of us who advocate limited government and individual choice in health care sit back smugly and rely on ERISA to do the hard work for us.  We are on shaky ground if we argue that federal law pre-empting local law is the best way to stop the tsunami of government-run health care.

Instead, we've got to make our local politicians understand that a tax hike is not health reform - something that even our businesses don't seem to understand.  The Golden Gate Restaurant Association, which brought the complaint against San Francisco, advocates a hike in the sales tax instead of a "pay or play" mandate!

Here's my least threatening recommendation to the "progressive" politicians of San Francisco and California: We've got the highest minimum wage in the country.  In 2008, San Francisco's goes up to $9.36 and the state's to $8, versus a federal minimum of $5.85.  These artificially high wages reduce health insurance among low earners.  How about giving employers a credit for health benefits, to the degree the local minimum wage exceeds the federal?  Hardly free-market utopianism, but something the City and State should consider if they really want to increase the number of low-income uninsured residents.