Looking at the Actual Law…

As I’m sure most of you know, I’m not a fan of Obamacare. As my critics would quickly say, “You must not care about the uninsured! The law helps 32 million people get health insurance and you’re just concerned about your pocketbook!”

Of course, we’re missing the point with that emotional statement. Getting health insurance is not a benefit in and of itself. The 16 million people who are now thrown into Medicaid will have an unfortunate surprise waiting for them. As will the expected 35 million who will now lose employer coverage because of the government’s new taxes/penalties on employers. Many low-income workers will now be paid less or laid off due to the required higher costs of hiring them. Doesn’t anyone care about those people?

However, my personal opinion on the Obamacare law holds no weight on its constitutionality. If it is constitutional according to the law, then I am glad they did the right thing and upheld it – regardless of what I think about it. That’s what a democracy is for. Because the judges are in place not to decide outcomes based on public opinion or policy preferences, but legal justifications. I have tremendous respect for the Supreme Court justices, and I’m not about to start denouncing them as blindly liberal or conservative without researching the basis for their decisions. Therefore I plan to read all actual opinions before I decide whether I agree or disagree with the decision, posting my thoughts (with quotes) here. For a good example of what this may look like, check out an analysis I recently did on the Arizona decision. Quite honestly, I think we’d be amazed at how a law this big that affects millions of people can come down to something so technical…

I think Arizona v. United States is not as polarized as the recent healthcare case. (Partly because Thomas, Alito, and Scalia didn’t completely agree on their positions) Here’s the actual opinions for the case. Scalia’s being criticized for being extra political, but I do like what he says about the state law conflicting with federal “priorities” doesn’t matter unless it conflicts with federal law.

Anyways, I want to focus on one specific section that was struck down, Section 3 (making it a crime for illegals not to have alien registration). In fact, Section 3 is exactly the same as federal law, just with slightly stricter state penalties. The issue at hand is whether federal law has “preempted” state law, meaning that states would not be allowed to act. If this were true, Section 3 would need to be struck down. So it comes down to the interpretation in the Hines decision (previous SC precedent) where the Court says, “[where Congress] has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.”
Scalia’s argument is this: “But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. “
Alito makes a good point as well however, when he stands by the majority for Section 3 being struck down because “If we credit our holding in Hines that Congress has enacted “a single in-tegrated and all-embracing system” of alien registration and that States cannot “complement” that system or “enforce additional or auxiliary regulations,” id., at 66–67, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration requirements must be invalidated. “
I find this one of the most compelling parts of the Supreme Court. It really comes down to what you think the definition of additional,  auxiliary, and complement are in the red quote above from Hines. Because it’s obvious that Section 3, the same statute as the federal law, doesn’t “interfere with”, “conflict”, or “curtail” the federal law. So what are the official definitions?

(From the Oxford English)
complement: “a thing that contributes extra features to something else in such a way as to improve or emphasize its quality”
additional: “added, extra, or supplementary to what is already present or available”
auxiliary: “providing supplementary or additional help and support”
I think it’s pretty clear Arizona’s law doesn’t complement the federal law because it doesn’t “contribute extra features”, so that’s out. Even if the writers were considered to be complementing the law, they wouldn’t be complementing it inconsistently with the purpose of Congress”, so that’d be okay. I think additional isn’t quite as clear-cut, but still not convincing enough to throw it out. The problem I think lies with auxiliary. Because the regulation in Section 3 does “provide additional help and support” to the existing federal regulation, meaning it should not be allowed. Which would make me agree with Alito, and strike it down.
But isn’t there always a catch? The original quote from Hines actually says, inconsistently with the purpose of Congress” at the beginning. If that disclaimer only extends to the following instructions, conflict or interfere with, curtail or complement, the federal law,”  then I’d still agree with Alito – it would clearly say at the end of the quote that states can’t add regulations no matter what. However, if one assumes the inconsistently with the purpose of Congress” applies to the entire quote, then the end essentially says that states can “enforce additional or auxiliary regulations.” as long as they’re not “inconsistent” with the purpose of Congress. Arizona’s Section 3 clearly isn’t inconsistent, considering it’s the same law Congress passed. By that logic, I would then side with Scalia/Thomas. So it ALL comes down to English interpretation of that phrase.
I look forward to analyzing the recent decision on Obamacare in a similar manner, and I hope you look forward to reading it too!

6 responses to “Looking at the Actual Law…

  1. “Unfortunate surprise” What might that be?

    “who will now lose employer coverage” It may be a little early to make that statement. First, we the people have two years to tweak things in such a way that may minimize such numbers. Second, we need to consider whether employer based coverage is the best option anyway.

    Consider again…

  2. Very nice man. But for those nit-picker critics that you get on law posts you should cite the quotes you pull with page numbers as the summary of opinions are several pages long. I look forward to reading your summary and opinions on the Obamacare ruling. Also I suggest using some of those after ruling reactions that I sent you earlier to show reactions from both side of the party lines. good luck.

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