Few things are more fundamental to our Constitution’s guarantee of liberty than the right to make a living and the right to a fair playing field when it comes to getting a job.
Yet it is inarguable that the Senate Gang of Eight’s immigration bill would tilt that playing field toward newly legalized immigrants at the expense of citizens. Could that make the bill unconstitutional?
In search of an answer, IBD checked in with Vanderbilt’s James Blumstein, whose brief Chief Justice John Roberts cited in making ObamaCare’s Medicaid expansion voluntary, and liberal Harvard Law Professor Laurence Tribe.
First, here’s some more background:
As IBD has explained, employers who offer insurance that is deemed either too pricey or too skimpy will have to pay an annual $3,000 fine for each full-time worker who takes advantage of ObamaCare’s subsidies to buy coverage.
Since legalized immigrants wouldn’t be eligible for ObamaCare subsidies for a decade or more, their employers could avoid an ObamaCare fine for years to come for each legalized immigrant on the payroll. What is more, because the fine is nondeductible, it would be the equivalent of $5,000 in annual wages for a profit-making firm facing a combined 40% federal and state tax rate.
It’s easy to imagine a scenario in which an employer, faced with a choice between shifting a legalized immigrant or U.S. citizen to part-time status, would be persuaded by government incentives to tilt against the citizen.
So the question is whether a U.S. citizen who believes he or she has been discriminated against because of this perverse incentive resulting from the interaction of immigration and ObamaCare might have a constitutional case.