Sunday, March 25, 2012

The HCR notUnprecedented Mandate

The basic arguments against the constitutionality of the health care reform are that the individual mandate is unprecedented in forcing individuals to buy something and that it goes against the intent of the founders. So, for example, Allen West in The Washington Times stated that, “The 2012 Supreme Court must determine whether the Founders had any intention of mandating the behavior of private enterprises and individuals. To me, the answer is obvious: absolutely not.” Likewise, Paul Gigot argued that, “the Affordable Care Act represents the first time Congress has required Americans to purchase a product. "I do think the question is novel enough -- the compelling of commerce by the federal government."”

There’s been a lot of comment in the past few days on the applicability of the 1792 Second Militia Act, everywhere from the Yale Law School News and Events page to Yahoo News. That was the law, passed by the second Congress and signed by President Washington, that mandated that all able-bodied men purchase muskets for the purpose of being ready and able to serve in the militia if called. That would seem to answer both questions rather conclusively, but for those who see too many differences between an obligation to be prepared to serve in the nation’s defense and buying health insurance, there is another, more relevant precedent.

Just six years later, in 1798, then president John Adams signed An Act for the Relief of Sick and Disabled Seamen that required, among other things, that private individuals who wanted to take employment as sailors on merchant ships buy health insurance. Unlike the Militia Acts, this had very specific mechanism for collection and specified penalties for failure (namely, not getting a job). Rick Ungar reported on this in Forbes over a year ago, in an article that answers every critique I’ve seen about the applicability of the Militia Act. If you missed it the first time around, it’s well worth a look now.

Monday, March 12, 2012


There is a move in my state (Virginia) to try for the Personhood Amendment to the state constitution. This has me thinking about some of the implications of fetus-personhood, and the more I do, the less I think that it's supporters have thought things through.

For example, could a fetus-person donate to a political campaign? Vote? Open a bank account? And would a fetus-person have the same legal rights as a corporate person, namely, to enter into and enforce contracts? Children don't have these rights, but the Personhood Amendments don't define fetuses as children. Hmmm. I guess all the personhood-states are going to have to tinker with the definition of a fetus-person to differentiate it from other kinds of persons. But, if you take away some rights from fetus-persons, what other rights could they lose?

The case of children is illustrative. Western society started, back in Roman times, with the notion of children as property of their fathers or guardians. There wasn't much change until the 19th century, when the first real rights were granted to children as individuals separate from their parents in the forms of compulsory education and child labor laws, innovations that conservatives, then and now, decry as unnecessary intrusions of the state into familial life. Since then, there have been numerous debates and developments in children's rights, in the US most notably over health and welfare issues. To create a new category of fetus-persons, protected from their parents by the state would open up a similarly complex set of issues that would not be resolved quickly or easily, and that would undermine fundamental conservative principles.

If the state has a declared interest in the well-being of the fetus-person, can pregnant women smoke? Drink? Can the neighbors play loud music? Fetuses are far more vulnerable to toxins, which greatly increase the risk of miscarriage; would fetus-personhood create a higher burden on industry to maintain environmental standards? On food manufacturers to limit additives in foods consumed by pregnant women? All of these questions would be raised, and probably litigated. Have the supporters of these measures considered these possibilitiesprobabilities? Besides the ones who are lawyers; I'm sure they are well aware of what a huge financial bonanza this would be to the legal profession.

Then there's the issue of taxes. The fetus-person would, arguably, be a resident. If the personhood-states determine that they are, somehow, legal, then under the US tax code, they could be claimed as a dependents by their mothers. Every expectant mom in a personhood-state gets a tax deduction! Even with the current makeup of the bench, I can't see the Supreme Court allowing individual states to define an entirely new category of federal tax deductions. At the very least, the definition of personhood would have to be modified to 'personhood for the purposes of' something or other, which would fundamentally undermine the premise that the fetal-person's rights should ever be considered equal to those of a full citizen.

Which brings up the question of fetus-person citizenship. We can answer that one. In the US, one of the ways we define persons is by whether or not they are US citizens. We grant citizenship in three ways:
1) By birth to a parent who is a US citizen,
2) by birth on US soil, or
3) by naturalization.
A fetus-person, not having been born, would be ineligible for methods one and two, and thus not inherently a citizen.

This has some interesting implications. Every pregnant woman in a personhood-state would be harboring an illegal alien and subject to prosecution. To avoid this without amending the US Constitution, all those fetuses would have to be naturalized, a process they could, arguably, be eligible for as immediate relatives of US citizens. This process is, of course, the responsibility of US Citizenship and Immigration Services, a federal agency. In 2010, around 675,000 applications for naturalization were processed, but it jumps around a lot - the highest number in the last decade was over a million in 2008. There are about six million pregnancies in the US each year, with just under two million of those ending in miscarriages. Even leaving out the miscarriages, that would, at the very least, quintuple the workload for naturalization services, requiring a significant expansion in the workforce. That being the federal workforce, you understand. Not to mention the trouble the states would have dealing with what to do with their growing illegal-fetus-aliens during the six months it takes USCIS to process each of these requests.

Far more likely is that the federal government would decide that USCIS will not accept naturalization requests for pre-born future-citizens. In that case, personhood-states would simply have to revise their immigration laws to accommodate large populations of temporary, illegal-fetus-aliens by defining them as some other category, like 'future citizens'. But, any fetus that can reasonably expect to be born on US soil is a future citizen. It would be very tricky to write that definition in a way that did not automatically grant temporary immunity from deportation for all pregnant women.