What ever happened to “equal protection under the law”?

There’s been a lot of ObamaCare chatter related to the Administration’s unilateral modifications of the law.

You know, the special favors and waivers that the President has been granting via HHS rules and executive orders.

I hear a lot about how the President is acing unconstitutionally by by simply changing a law enacted by Congress, but …


I haven’t heard any pundits flashing the 14th Amendment – the so-called “equal protection” clause.

Let’s start with the basics …

The constitution guarantees that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. Source

The principle is codified in the Fourteenth Amendment to the United States Constitution, which took effect in 1868

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

Originally, the law was intended to combat racial discrimination, but it has evolved over time to apply to practically all “classes” of citizens.

And, reading the clause literally, it applies only to state governments.

However, the requirement of equal protection has been read to be judicially enforceable against the federal government as well, beginning with the Supreme Court’s opinion in Bolling v. Sharpe (1954). Source

OK. with that as a backdrop …

  • How can the government treat the employees of big companies (deferred mandates) differently than small companies?
  • How can the government treat Florida (MediCare Advantage waiver) differently than Arizona (no waiver)?
  • How can the government waive the individual mandate for folks who lost the  insurance plan they were happy with (individual mandate waived) differently than folks who previously choose to self-insure (i.e. buy no insurance)?

I think that the last minute waiver to folks with cancelled policies will elevate the issue, and that this equal protection stuff is going to emerge as a big deal in 2014.

Remember, you heard it here first.

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