# Could this lawsuit succeed? **URL:** \ **Category:** Great Debates\ **Created:** [October 22, 2013, 6:33pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954 "2013-10-22T18:33:40Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 22, 2013, 6:33pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/1 "2013-10-22T18:33:40Z")
ACA (aka Obamacare) specifically excludes illegal aliens from the law. However, residents are entitled to equal protection under the law and I believe that illegal aliens are considered as residents as per SCOTUS for things such as public education, welfare benefits, etc. So I decide not to get health insurance and end up owing the fine. I decide to sue because excluding illegal aliens from the fine is clearly not equal protection, i.e. I am punished for being a citizen. Would this case hold up? Note: depending on the responses, this might be better off in GD. ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [October 22, 2013, 10:17pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/2 "2013-10-22T22:17:20Z")
Moved from General Questions to Great Debates. **samclem** , moderator ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 22, 2013, 10:52pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/3 "2013-10-22T22:52:33Z")
I doubt it. Citizens’ right to equal protection under the law means that all citizens have to be treated the same. Not that they all have to be treated the same as non-citizens. Non-citizens who are here illegally also don’t have to serve on juries, don’t have to pay certain taxes, can’t be drafted, aren’t allowed to run for office… the list goes on. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 22, 2013, 11:02pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/4 "2013-10-22T23:02:13Z")
Almost certainly no. Equal protection is only triggered when a suspect class or a fundamental right is involved. It would be hard to shoehorn non-citizenship into that category for mandatory participation in a health care system. But who knows? Get Justice Kennedy into his “sweet mystery of life” mode and we might have a never before seen level of scrutiny applied. 🙂 ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [October 23, 2013, 12:33am UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/5 "2013-10-23T00:33:34Z")
> [@jtgain](#): > > Almost certainly no. Equal protection is only triggered when a suspect class or a fundamental right is involved. It would be hard to shoehorn non-citizenship into that category for mandatory participation in a health care system. > > But who knows? Get Justice Kennedy into his “sweet mystery of life” mode and we might have a never before seen level of scrutiny applied. 🙂 More precisely, equal protection applies to all laws; it’s just extraordinary unlikely that an equal protection challenge will succeed unless a suspect class or a fundamental right is implicated, which, like you mentioned, changes the level of scrutiny a court is supposed to apply. But. It [isn’t totally clear](http://law.justia.com/constitution/us/amendment-14/88-alienage-and-nationality.html) exactly what sort of classification alienage is for equal protection purposes. We use strict scrutiny, except not when certain exceptions apply, but we don’t really know what we do when those exceptions _do_ apply… messy. Anyway, that’s all just to say that it’s possible that the government might have to meet a higher bar than you’d expect. As to the question in the OP, what it comes down to is what exactly is the preferential treatment that’s being alleged, and what is the government’s justification for that distinction? My understanding is that illegal aliens don’t have any access to any of the benefits under the ACA, and that’s why they don’t pay the fine, so it seems like it would fail on those grounds, but I’m not an expert on the details there. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 26, 2013, 1:24pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/6 "2013-10-26T13:24:49Z")
> [@Jimmy\_Chitwood](#): > > But. It [isn’t totally clear](http://law.justia.com/constitution/us/amendment-14/88-alienage-and-nationality.html) exactly what sort of classification alienage is for equal protection purposes. We use strict scrutiny, except not when certain exceptions apply, but we don’t really know what we do when those exceptions _do_ apply… messy. > > Anyway, that’s all just to say that it’s possible that the government might have to meet a higher bar than you’d expect. As to the question in the OP, what it comes down to is what exactly is the preferential treatment that’s being alleged, and what is the government’s justification for that distinction? My understanding is that illegal aliens don’t have any access to any of the benefits under the ACA, and that’s why they don’t pay the fine, so it seems like it would fail on those grounds, but I’m not an expert on the details there. The heightened scrutiny for alienage has always applied to legal residents. I can’t ever remember the Court saying that illegal immigrants are entitled to equal protection under the law, because by their very nature they are here illegally. The only exception I can think of was the case about 25 years ago that held that a school district could not refuse to admit a child because the child was in this country illegally. I don’t want to start a debate over that, but I think that was an example of bad facts making bad law. We don’t want to punish a child for what his parents did so we shoehorn it to allow the kid to go to school. An O’Connor “sweet mystery of life”-type opinion as well not really based in good law. ---
**Author:** ![Rachellelogram](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rachellelogram/32/8689_2.png) [@Rachellelogram](https://boards.straightdope.com/u/Rachellelogram)\ **Post date:** [October 26, 2013, 2:12pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/7 "2013-10-26T14:12:31Z")
> [@jtgain](#): > > Almost certainly no. Equal protection is only triggered when a suspect class or a fundamental right is involved. It would be hard to shoehorn non-citizenship into that category for mandatory participation in a health care system. > > But who knows? Get Justice Kennedy into his “sweet mystery of life” mode and we might have a never before seen level of scrutiny applied. 🙂 To bolster this, there is a fundamental right to health care. But there is no fundamental right to have that health care paid for. The fundamental right to health care is already served by the existence of emergency rooms. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 26, 2013, 6:49pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/8 "2013-10-26T18:49:30Z")
> [@Rachellelogram](#): > > To bolster this, there is a fundamental right to health care. But there is no fundamental right to have that health care paid for. The fundamental right to health care is already served by the existence of emergency rooms. I’m not sure I follow. At least in the United States, the Supreme Court has never held a “fundamental right to health care.” ---
**Author:** ![Rachellelogram](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rachellelogram/32/8689_2.png) [@Rachellelogram](https://boards.straightdope.com/u/Rachellelogram)\ **Post date:** [October 26, 2013, 8:32pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/9 "2013-10-26T20:32:41Z")
> [@jtgain](#): > > I’m not sure I follow. At least in the United States, the Supreme Court has never held a “fundamental right to health care.” Ethically, at a minimum. There may be a legal precedent, but I can’t speak to that. Anybody know of any lawsuits where a hospital was penalized for refusing emergency care to a poor patient? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 26, 2013, 8:54pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/10 "2013-10-26T20:54:52Z")
> [@Rachellelogram](#): > > Ethically, at a minimum. There may be a legal precedent, but I can’t speak to that. Anybody know of any lawsuits where a hospital was penalized for refusing emergency care to a poor patient? Forgive me for being to lawyerly, but I see a vast gulf between: 1. A person/entity/hospital should act with morality and decency and provide health care to an individual who can’t afford it, versus 2. A person has a constitutional, fundamental right enforceable at law to health care. As to your second question, I’m going on memory, but I believe that its only since 1986 that federal law has required emergency care to people, no matter if they can pay. There could be suits under that law. Otherwise, under basic common law principles, nobody has a legal duty to anyone for something he/she didn’t cause. You could watch me twitching in the street and smoke cigarettes while smiling and couldn’t be punished criminally or suffer a civil penalty. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [October 26, 2013, 11:21pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/11 "2013-10-26T23:21:59Z")
> [@jtgain](#): > > You could watch me twitching in the street and smoke cigarettes while smiling and couldn’t be punished criminally or suffer a civil penalty. [disclaimer]THIS IS NOT AIMED AT YOU PERSONALLY. I have no idea about your beliefs on this subject.[/disclaimer] And it amazes me how many people who to profess to be Christians not only accept this as the status quo, but prefer it that way. One of the many reasons I resist being associated with modern Christianity - they have no idea what their “Lord and Savior” even said, let alone meant. Sorry for the hijack. To the OP, I don’t see how it possibly could succeed (the lawsuit). As I understand it, there’s pretty considerable case law that says that while illegal aliens are subject to some of the same protections as citizens, they are not citizens and can be ‘discriminated’ against. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 26, 2013, 11:27pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/12 "2013-10-26T23:27:00Z")
> [@Zakalwe](#): > > [disclaimer]THIS IS NOT AIMED AT YOU PERSONALLY. I have no idea about your beliefs on this subject.[/disclaimer] > > And it amazes me how many people who to profess to be Christians not only accept this as the status quo, but prefer it that way. One of the many reasons I resist being associated with modern Christianity - they have no idea what their “Lord and Savior” even said, let alone meant. Maybe the separation between church and state? I might believe that such a person has an ethical and moral duty to help, but wouldn’t bring the power of the state upon such a person for not helping. Seems like a pretty tolerant Christian view (if that’s what it is). ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [October 27, 2013, 12:27am UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/13 "2013-10-27T00:27:21Z")
> [@jtgain](#): > > Maybe the separation between church and state? I might believe that such a person has an ethical and moral duty to help, but wouldn’t bring the power of the state upon such a person for not helping. Seems like a pretty tolerant Christian view (if that’s what it is). Yeah, but funny how when it comes to…oh, pretty much all the rest of their morals…they seem to be perfectly willing to have the government enforce them on their behalf. Just don’t make them actually HELP other people. That should just come from “good Christian charity” (which should read “when I fucking feel like it and there’s not something I want to buy with that money”).\* - Again, this is a broad brush generalization and should not be taken as a slam against any specific person - I know several truly admirable people who call themselves Christians and live up to that name on an impressively consistent basis. Unfortunately, they seem to be outnumbered by the “I’m Saved and you’re not (or maybe you are, but you’re different) so FUCK YOU!” Christians. At least locally. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 27, 2013, 12:46am UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/14 "2013-10-27T00:46:37Z")
> [@Zakalwe](#): > > Yeah, but funny how when it comes to…oh, pretty much all the rest of their morals…they seem to be perfectly willing to have the government enforce them on their behalf. Just don’t make them actually HELP other people. That should just come from “good Christian charity” (which should read “when I fucking feel like it and there’s not something I want to buy with that money”).\* > > - Again, this is a broad brush generalization and should not be taken as a slam against any specific person - I know several truly admirable people who call themselves Christians and live up to that name on an impressively consistent basis. Unfortunately, they seem to be outnumbered by the “I’m Saved and you’re not (or maybe you are, but you’re different) so FUCK YOU!” Christians. At least locally. Were getting far away from the OP and I don’t want to hijack, but I don’t see the inconsistency. I will say that I personally do not agree with most morals legislation as it as Justice Thomas said (quoting another) “uncommonly silly.” But there is consistency. Morals legislation simply requires a person to refrain from an allegedly immoral act: don’t commit bestiality, fornication, adultery, (yes homosexuality–another possible hijack), polygamy, abortion, sell liquor on Sunday, smoke weed and the like. Refrain or _do not do_ something. (And I’ve done 3 of the above, and have bought, but not sold liquor on Sunday. 🙂 ) Since ancient times, the common law, influenced by Christianity, has never required a person to affirmatively _do_ something. Whether that is hypocrisy or a reasoned delineation of the law is for another thread which I will be happy to participate in. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 27, 2013, 4:05pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/15 "2013-10-27T16:05:12Z")
> [@Zakalwe](#): > > To the OP, I don’t see how it possibly could succeed (the lawsuit). As I understand it, there’s pretty considerable case law that says that while illegal aliens are subject to some of the same protections as citizens, they are not citizens and can be ‘discriminated’ against. So NOT having to pay a fine is discrimination? That’s a great form of discrimination. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [October 27, 2013, 9:25pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/16 "2013-10-27T21:25:36Z")
> [@Saint\_Cad](#): > > So NOT having to pay a fine is discrimination? That’s a great form of discrimination. No, the OP is complaining that him NOT getting to NOT have to pay the fine is discriminating against him and to the benefit of the undocumented immigrants. I think. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 28, 2013, 12:52am UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/17 "2013-10-28T00:52:31Z")
Yes I am. But Zakalwe’s point was that it was legal to discriminate against illegal immigrants but the issue is they don’t have to pay the fine so it’s not really discrimination as much as a benefit. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [October 28, 2013, 12:56pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/18 "2013-10-28T12:56:04Z")
> [@Saint\_Cad](#): > > Yes I am. But Zakalwe’s point was that it was legal to discriminate against illegal immigrants but the issue is they don’t have to pay the fine so it’s not really discrimination as much as a benefit. I probably should have said something like “can be treated differently with regard to benefits and protections.” Does that solve your objection? Or what are we arguing about? ---
**Author:** ![Chief\_Pedant](https://avatars.discourse-cdn.com/v4/letter/c/a6a055/32.png) [@Chief\_Pedant](https://boards.straightdope.com/u/Chief_Pedant)\ **Post date:** [October 28, 2013, 1:25pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/19 "2013-10-28T13:25:55Z")
> [@Saint\_Cad](#): > > ACA (aka Obamacare) specifically excludes illegal aliens from the law. I see no mechanism by which illegal aliens will be denied the chance to participate in Obamacare, but I perhaps I am really confused and I haven’t paid much attention. Unless one requires proof of citizenship, this sort of “law” appeases the anti-immigrant crowd, but in practice is unenforceable. Requiring proof of citizenship is usually a non-starter, isn’t it? So it seems to me the issue is moot anyway. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [October 28, 2013, 1:47pm UTC](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954/20 "2013-10-28T13:47:44Z")
> [@jtgain](#): > > The only exception I can think of was the case about 25 years ago that held that a school district could not refuse to admit a child because the child was in this country illegally. I don’t want to start a debate over that, but I think that was an example of bad facts making bad law. You don’t have to start a debate over it to acknowledge that it’s a real thing that happened, though, and the OP’s question was about what might happen. I’m not sure how your first and second paragraphs can be reconciled. It’s not the only exception, but even if it were, _Plyler_’s still on the books, as far as I know, including > [@](#): > > This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. [Next page](https://boards.straightdope.com/t/could-this-lawsuit-succeed/671954.md?page=2)