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The authors suggest plaintiffs and/or state attorneys general should consider taking Justice Clarence Thomas up on his effective suggestion, in the 2016 Supreme Court case of Gobeille v. Liberty Mutual Insurance, to put before the federal courts the question whether the preemption clause of the Employee Retirement Income Security Act of 1974 (“ERISA”) represented a valid exercise of federal power under the Commerce Clause of the Constitution. ERISA’s exceptionally broad statement of preemption does in fact seem to have unconstitutional reach: It purports to preempt “any and all” state laws that simply “relate to” employee benefits, a formulation without logical boundaries. Furthermore, because the clause currently does, in the main, only harm to the interests of plan participants and public welfare, constitutionally limiting ERISA preemption to conflict or "field preemption” has normative benefits. The new approach would leave ERISA’s protective measures in effect, while opening the possibility of a future in which the states may pursue diverse policies of economic justice and social welfare, reflecting the circumstances and political preferences of their respective populations.

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