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Can the third branch of government decide the Health Care debate?

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RagAss Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:01 PM
Original message
Can the third branch of government decide the Health Care debate?
Edited on Sun Aug-23-09 12:02 PM by RagAss
I know, it's wacky...but I had a strange dream that the country was riveted to their tv's and radios waiting for the Supreme Court to decide on the Public Option. And then I started thinking... if there was a scenario in which this strange dream of mine could actually happen?

I have no law background, so I don't know. Anybody see this as a possibilty??...or did I just have too much to drink on a Saturday night?
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:04 PM
Response to Original message
1. The first "not insane" scenario that comes to mind is the Court interpreting
the Constitution as guaranteeing a right to health, and by extension, healthcare.
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RagAss Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:06 PM
Response to Reply #1
4. My first thought upon awakening !!!!! I can see that.
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proud2BlibKansan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:04 PM
Response to Original message
2. A wingnut told me this just last night; the health care debate will be solved by the SC
And Sotomayor is Obama's ace in the hole.

This must be a new right wing talking point.

And I am no legal expert but this makes zero sense to me. Will the GOP immediately ask the SC to step in as soon as the bill is passed? :shrug:
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:10 PM
Response to Reply #2
5. It's pretty hard to ask the Court to do anything. The biggest check against its power
is its inability to resolve questions not presented to it as a case or controversy.

And, if I recall correctly, the standing requirement is not met by being a federal taxpayer.
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Cleita Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:06 PM
Response to Original message
3. I hope not. They will uphold the personhood of the corporations and their
right to make a living (profits). We need a less conservative SC to do this.
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Coyote_Bandit Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:11 PM
Response to Original message
6. "...life, liberty, and the pursuit of happiness...."
Fundamental rights guaranteed by the US Constitution. Arguably more fundamental than those guaranteed by the Bill of Rights. Frankly I'm rather amazed that some genius liberal think-tank lawyer hasn't brought suit against the Federal government invoking these rights - and perhaps also alluding to the Equal Protection Clause. After all, the federal government does provide taxpayer funded health care to millions of folks. But then those genius types who work in traditional conventional industries often are completely lacking in the ability to think outsde the box, lacking in creativity, and perhaps a bit lacking in intestional fortitue...

Really there is no excuse as to why these issues are not being litigated by liberal health care advocacy groups.
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RagAss Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:13 PM
Response to Reply #6
7. Well maybe we just did bring it up, Coyote ! Let's hope.
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Coyote_Bandit Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:20 PM
Response to Reply #7
10. Thing is
thes kinds of cases often take years to work their way through Federal Court before even having the opportunity to seek certioria from the Supremes - something which is not mandatory. Often the court s quite selective to hear a case with novel issues which can be decided only on that one novel issue. That usually means several cases are denied cert before the Court decided to hear one of the cases. The fact that none of these arguments are presently bing made would indicate that any Supreme Court resolution of health care issues could easily be at least a decade away if relevant cases were currently being argued. Some of our advocacy groups are clearly not being proactive.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:18 PM
Response to Reply #6
8. That's the Declaration of Independence, not the Constitution. nt.
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Coyote_Bandit Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:21 PM
Response to Reply #8
11. Yes, You're right n/t
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Motown_Johnny Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:19 PM
Response to Original message
9. I thought we could challenge the age 65 rule in Medicare as age discrimination
and sue that it be removed so that everyone could join
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RagAss Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:22 PM
Response to Reply #9
12. Great perspective.
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Davis_X_Machina Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:32 PM
Response to Reply #12
14. But not going to happen. (refers to #9 and misplaced...)
Edited on Sun Aug-23-09 12:34 PM by Davis_X_Machina
Since the discrimination alleged is not on the basis of one of the prohibited categories in the 1964 civil rights act, nor a category that meets the other tests for the application of strict-scrutiny review*, your suit would be judged on a rational-relationship standard.

And Medicare's already met that. Is there a rational relationship between the law's purpose (remedying insurers not insuring the elderly) and the law's discriminatory component (not kicking in till after 65)? Yes. End of case.

* strict-scrutiny class test:

-- a discrete or insular minority, (nope -- you're suing for a majority -- most people are under 65)
-- who possess an immutable trait, (nope -- age is the opposite of immutable -- it changes every day)
-- share a history of discrimination, (nope)
---are powerless to protect themselves via the political process, (nope -- see for discrete and insular)

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Davis_X_Machina Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:23 PM
Response to Original message
13. No chance. None. Zip. Nada.
Edited on Sun Aug-23-09 12:37 PM by Davis_X_Machina
Either way.

A must-buy, must-issue insurance-based scheme would be found constitutional -- which will piss off people both here (one with no public option) and on FreeRepublic.com (one with a public option), curiously enough.

The Court, and certainly the Court as presently composed, isn't going to find a constitutionally guaranteed right to medical care either, not unless legislation or an amendment to that effect is passed.

The subject receives a thorough discussion in Cass Sunstein's 2004 book, The Second Bill of Rights: FDR's unfinished revolution and why we need it more than ever.
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rurallib Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 01:00 PM
Response to Original message
15. this crossed my mind Monday.
Seems that the RW will do anything, ANYTHING, to stop HC and the court is now about as right wing as it has ever been. So I am sure that is the next step.
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Davis_X_Machina Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 01:05 PM
Response to Reply #15
16. I don't see a constitutional ground...
....for overturning a plan because it has a public option, and I don't think a Republican group is going do the same if a plan lacks one -- that would mean going in front of a court with a Republican majority to try and overturn a mandate to buy a product from a group of Republican campaign contributors.
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rurallib Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 03:16 PM
Response to Reply #16
17. I didn't say it would be overturned, but I believe it will be tied up
I am guessing that lawyers could tie it up for a few years hoping that Dems will lose congress and/or Obama will be defeated.
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Davis_X_Machina Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 04:12 PM
Response to Reply #17
19. Depends on what you can get out of your...
...various lower court judges in terms of a stay. If the arguments are really infirm, then they won't even bother.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 04:13 PM
Response to Reply #19
20. Yeah I find it hard to believe that a judge would enjoin the program, especially considering
the fact that any potential plaintiff would likely get shot down on standing (IIRC, federal taxpayer status is insufficient).
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DailyGrind51 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 03:17 PM
Response to Original message
18. Like they did the 2000 election? No thank you!
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