Friday, June 7, 2019
I’m back and mostly recovered from a family vacation in Edinburgh, Scotland, UK. While walking through the cemetery where Adam Smith was interred, my family was surprised to see homeless persons encamped there. A lively discussion with my teens ensued. We also explored the ruins of tenements in the “old town,” where a cry of Gardyloo! (watch out for the “water”) was once required of residents before launching garbage and excrement from the upper floors of tenement houses, where it would remain in the streets long enough to generate odors and disease. Imagine such a thing – human excrement in the streets! Lamentably, we can perhaps once again more than imagine it. The highlight of the trip for me was to have access to materials on, and to visit some of the haunts of, my intellectual hero, David Hume, to my mind one of the clearest thinkers who has ever lived.
Gardyloo! Watch out for legislative “water” events. In Ohio, a recent bill would, among other things, require workers’ compensation applicants to disclose their immigration status as a condition of benefit eligibility. (see here behind paywall). Advocates attack the requirement. It sounds like bad policy, for a number of reasons that are being articulated by advocates: workers won’t apply; the risk pool is shrunk; there is under-deterrence of dangerous workplace practices. You know all these arguments. And in fact similar arguments were advanced and countered (in a different statutory context) in the still-seminal Supreme Court case, Hoffman Plastic Compounds. The problem is that Hoffman Plastic involved conflict between federal laws, which makes it a tenuous precedent when considering the interplay between state law implicating immigration and federal law. It is a problematic opinion for all parties in such cases if used either as a sword or a shield. This does not mean that parties (and courts) don’t try to do so; it just renders the attempts clunky, unpersuasive, and vulnerable. The issue has too much federalism in it to be resolved so easily.
Ultimately, the discussion starts where it always must: the limits of legislative power. What prevents a legislature from doing whatever it wishes? What renders a legislature “non-supreme”? The answer, of course, is a constitution—whether federal or state. To crystallize the specific question here, as a matter of law (not policy), why can’t a state legislature require a workers’ compensation applicant to disclose immigration status in order to be eligible for state benefits? Is it, for example, an illegal search? Perhaps the requirement violates the Doctrine of Unconstitutional Conditions attached to benefits. If a claimant with standing were to challenge the requirement on unconstitutional conditions grounds, I’d probably suggest beginning with Sherbert v. Verner. (I don’t think it is “just” a religious exercise case).
The answers to the “what prevents” question, if there are any other than “nothing,” are probably to be found in the 14th Amendment of the U.S. Constitution or, in this case, the Ohio constitution. I have written recently on why the Equal Protection clause of the 14th amendment is almost always a non-starter, and I think that is probably true here. What about substantive due process? Next week, I’ll write a little about substantive due process and review the difficulty posed by the “No Set of Circumstances” test. One thing is clear, a judge (and eventually a group of them) will want someone to point to something in a constitution that says the legislature can’t do what it just did. Elementary? Certainly. But occasionally I find it useful for someone to explain things to me like I’m a two year old.
Michael C. Duff