Do Illegal Aliens Have A Constitutional Right To Health Insurance?

2009 October 9

by Joseph Klein

The O’Reilly Factor had the Fox News 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 the substance of Judge Napolitano’s argument, 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. (Emphasis added)

Napolitano argued that, since the term “personâ€