Sunday, September 13, 2009

If You Weren't Tired Enough of the Health Care "Debate"...

My post last week castigating Representative Joe Wilson of South Carolina for shouting "You lie!" at President Obama during the President's speech to Congress on health care reform brought forth a flood of comments. Everyone has an opinion on the subject, even if the opinion is limited to "I don't like it."

One exchange of comments took place between my friend Debbie and I, but didn't make it into the blog because the Blogger Screw-With-Your-Mind subroutine kicked in and wouldn't let her save her initial comment. The exchange thus took place by e-mail, which is why the rest of you didn't see it.

Debbie said she'd listened to a lecture by 'a Judge' (not further identified) who maintained that the President had, indeed, lied when he said the proposed health care reforms would not cover illegal aliens. As Debbie summarized his point, he noted, "... the stipulation in our Constitution that laws passed that cover all American citizens must equally apply to all legal and illegal aliens as well. Therefore if there is health care for all Americans it must cover the non-Americans as well. If Congress and the President enact such a law the Supreme Court will strike it down."

This got my research gland to start secreting, and I went back to the Constitution to read what it actually said. I didn't find anything like what the Judge said, but one of my co-workers directed me to the probable source of his position - the Fourteenth Amendment. This is what the relevant portion of this amendment says:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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."

Here is what I wrote to Debbie based on my read of this section (with minor edits to make this a more general discussion than the original one between us) ...

** Start self-plagiarization section **

"...(note) that the wording (of the 14th Amendment) clearly defines citizens as 'all persons born or naturalized in the United States and subject to the jurisdiction thereof.' This would seem to preclude applicability of constitutional guarantees to those in the country illegally, particularly since it says 'and subject to the jurisdiction thereof.' If it applied to others, the correct wording would be 'or subject to the jurisdiction thereof.' This may be legalistic and grammatical hairsplitting, but it's what lawyers get paid to do (and bloggers, unfortunately, don't).

"We can take the discussion still farther by noting that the Amendment goes on to state that 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...' This ensures that individual states cannot subvert the guarantees of the Constitution. But it goes on to say that, '...(no state shall) deny to any person within its jurisdiction the equal protection of the laws.' This is probably open to endless legal debate, but the way I read it is that, yes, the states must apply the Constitution and federal law equally to everyone...and if the law specifically either applies to or excludes a particular class of individual (like someone here illegally), well, perhaps they should have stayed home.

"If you read all the comments posted to my blog post, you saw the one from my virtual friend Gilahi, who pointed out that this is a bogus argument in any case: illegal immigrants (and those who don't have/can't afford health insurance) go to hospital emergency rooms and free clinics for care, anyhow...and you and I end up paying for their treatment by way of the higher prices we pay for our own care or the higher taxes we pay to support facilities operated by local governments.

"This is a very difficult and complicated issue with no silver bullet solutions. I strongly believe that some form of "public option" needs to be a part of a multi-faceted solution that also includes (as a minimum) tort reform, separation of health insurance from employment, and some form of control over the cost of drugs. Illegal immigration is a separate, but closely-related issue...and you may recall that I have already published a comprehensive plan for immigration reform. If you've never seen it, let me know and I'll send you a copy.

"Sadly, nothing will get done until conservatives stop vilifying anything that involves government, and liberals stop living in a fairy-tale world of believing everyone should have access to everything without cost. It may not come across in my blog and e-mails, but I'm a fundamentally conservative person who is embarrassed (if not mortified) by the actions of congressional conservatives (read "Republicans"). I changed my voter registration from "Republican" to "Independent" long ago because I couldn't stand what the Republican party had changed into, and what the Democratic party had become."

** End self-plagiarization section **

I love it when I can recycle things I've already written to squeeze out a post!

So, what do you think about my arguments? As I told Debbie, I don't profess to be a Constitutional Law scholar or an expert in any sort of law. I haven't read all the laws based on the 14th Amendment and their legislative histories. But I do know how to read and, I think, separate what's actually being said from what the words can be tortured into saying. At least in the case of the applicability of the President's health care reforms to illegal aliens, I think the Constitutional basis is pretty clear.

But I'm sure some of you will disagree with me. Go for it. But support your arguments with facts, and not with ad hominem attacks or irrelevant diversions. The topic is important enough to deal with in a rational, factual way that respects honest differences of opinion.

Shouting, "You lie!" doesn't count.

Your turn.

Have a good day. More thoughts tomorrow.


P.S. - Debbie, I assume you won't object to my use of our exchange...


Debbie said...

As a preface, I did not hear all of the Judge's comments only the tail end, and it is truly a pleasure to be a source of inspiration!
Perhaps the clue to his arguement lies in past Supreme Court rulings and their interpretation of the Constitution. Illegal aliens get Social Security and other "benefits" of citizenship. The laws must be equitably applied unless it targets a specific group, such as abortion rights applying only to women, but all women are afforded the same right. Other laws regarding terrorism, felony offenses etc. apply to all within our borders. Another scenario to consider, if our government requires employers to provide health insurance for all of their employees, then the apple growers et al who rely on illegals for their harvests will be forced to buy health insurance for the illegals. There goes our grocery bills through the roof, or will they get bail outs too? While I'm sure our President is sincere in his efforts, I don't think he has fully thought through all of the ramifications of some of his ideas.
If I can get out, Congressman Massa of UTube fame, is having another Town Hall meeting today...I intend to ask him what he thinks if I can get to a mike. At the last meeting he bussed in his supporters, many from outside of our Congressional District to hog the's not the Tea Party or the GOP stacking the audience here!

SusieQ said...

Bilbo, thanks for providing this forum where we can discuss specific issues associated with health care reform.

Debbie, what I understand is that illegal aliens who have paid into the SS system get social security benefits only if and when they become legal. That seems fair enough. That said though, Congress might decide to make it much easier for illegals to obtain legal status. You have to ask yourself then if that is fair to the rest of us.

Mike said...

The and/or topic is not hairsplitting. It's very specific and they mean very different things.

Another is the will/shall thingy (technical talk there). You 'will' do it. Maybe, maybe not. You 'shall' do it. Do it or go to jail.

Jean-Luc Picard said...

We're hearing a lot about this healthcare issue here in Britain, so it must be endless in the US

Anonymous said...

Bilbo, I actually aced Constitutional Law whilst getting an otherwise useless Master's Degree. Our professor emphasized the effect of the 14th Amendment in making the first 10 Amendments operational on both the Federal Government and the States.

I agree with your interpretation, that all persons under any US jurisdiction must be treated equally. Here's a for instance: Are illegal aliens read their Miranda Rights? Of course they are--because the 14th Amendment mandates it. QED. (To top it off, the reason those at Guantanomo Bay have access to US Courts traces back to the 14th Amendment, also.) So at least the courts of original jurisdiction in these cases have applied the 14th Amendment extra-territorially.

This conflicts with the Hague/Geneva Conventions, which being treaties supersede US law in their area of provenance (I bet you didn't know that!). Under the Hague Convention you can shoot illegal combatants (which most Taliban/al-Qaeda are) on sight. The only reason not to is to extract intelligence information, but we're too nice to follow cooperation with a quick bullet in the back of the head. The Hague Convention probably needs to be changed, because it reflects the Treaty of Westphalia (governing war since 1648 is its motto!) which has been superseded by non-state actors fighting against organized and recognized states. The Treaty of Westphalia says you can't do that, but the Westphalian police have been out of business since the Korea War, which was not declared, as required under the Treaty.

Arent' you glad you learned all this trivia?

Eminence Grise