The O’Reilly Factor hadÂ the Fox NewsÂ senior judicial correspondent Judge Andrew Napolitano on the show last night. He claimed that it would be unconstitutional for Congress to ban illegal aliens from participating in any health insurance plans, particularly the public option. He based his analysis on the Fourteenth Amendment’s Equal Protection clause. A constitutional law professor who was also on the show essentially echoed Napolitano’s opinion without adding anything of substance.
First off, with all due respect to Judge Napolitano and the law professor, I would have preferred some constitutional law heavyweights to argue the issue from a liberal and conservative point of view — for example, Harvard Law Professor Laurence Tribe and Robert Bork. That would have made for a lively and much more informed discussion.
As for theÂ substance Â of JudgeÂ Napolitano’s argument,Â the Fourteenth Amendment provision he cited states as follows:
[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Â Â Â (Emphasis added)
Napolitano argued that, since the term “person” rather than “citizen” is used in this provision, illegal immigrants cannot be denied core government benefits while they reside in this country; i.e., their illegal status does not matter when it comes to government entitlements that other persons in the United States receive. He referenced a Supreme Court decision holding that children of parents who are illegal immigrants cannot be denied a public education.Â
Napolitano’s Â reasoning is faulty on several counts.Â First of all, the case that he wasÂ most likely thinking of — Plyler v. DoeÂ – was the product of a much more liberal court and even thenÂ was decided in 1982 by a 5-4 vote.Â It is ripe for being overturned by the more conservative Roberts Court, especially given the sharp increase in the number of illegal aliens in this country since 1982 — a number that would swell still further if those illegals become entitled to the same health benefits as U.S. citizens and other legal residents.Â
Â Secondly, the Plyler decision focused on:
the discrete class of children not accountable for their disabling status. These children can neither affect their parents’ conduct nor their own undocumented status. (Emphasis added)
Napolitano is extending that reasoning to protect the adults who violated the law and are accountableÂ for their actions, as well as their children. At most, if the Plyler case remains intact, only the children (who “can neither affect their parents’ conduct nor their own undocumented status”) should be permitted access to insurance coverage.Â As I said, I expect that this decision will be overturned — or at least considerably narrowed to apply only to Â its unique facts.
Third, even this case recognized that illegal aliens are not constitutionally entitled to all government benefits.Â Congress is entitled to draw distinctions among classes of persons, where the distinctions have a rational basisÂ that advances a legitimate government purpose. If this were not true, then Social Security benefits would have to be made available to all illegal aliens, and it would not be illegal for employers to hire illegal aliens — an oxymoron to say the least. The net effect would be to reward those who had managed to enter and stay in this country illegally — rendering them de facto legal residents for all intents and purposes.
Fourth, illegal aliens already have access to some measure of health care — the emergency rooms of hospitals –Â in the event that they need medical attention.Â Opening up the public option, if there is one, to illegal aliens will only encourage even more illegal immigration. In addition, it will overwhelm the health system with far more people seeking medical services than there are doctors to supply them, forcing the rationing of care that will impinge on the health and well-being of all legal residents in this country.
Having said all this, it is quite possible that Judge Napolitano will end up being right after all.Â But the multi-faceted dimensions of this complex legal issue deserved more than the superficial discussion we heard on The O’Reilly Factor.