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

[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?

[Hosnon]

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.

[RagAss]

4. My first thought upon awakening !!!!! I can see that.

[proud2BlibKansan]

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?

[Hosnon]

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.

[Cleita]

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.

[Coyote_Bandit]

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.

[RagAss]

7. Well maybe we just did bring it up, Coyote ! Let's hope.

[Coyote_Bandit]

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.

[Hosnon]

8. That's the Declaration of Independence, not the Constitution. nt.

[Coyote_Bandit]

11. Yes, You're right n/t

[Motown_Johnny]

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

[RagAss]

12. Great perspective.

[Davis_X_Machina]

14. But not going to happen. (refers to #9 and misplaced...)

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)

[Davis_X_Machina]

13. No chance. None. Zip. Nada.

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.

[rurallib]

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.

[Davis_X_Machina]

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.

[rurallib]

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.

[Davis_X_Machina]

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.

[Hosnon]

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).

[DailyGrind51]

18. Like they did the 2000 election? No thank you!