One of the more authoritative-sounding arguments that the Democrats are advancing to preserve ObamaCare is that it is “settled law.” But it is anything but.
Gerard Magliocca, a professor of constitutional law at Indiana University, explained why yesterday in the Washington Post. Magliocca wrote:
Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.
A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy. Roe remains unsettled after 40 years primarily because Republicans refuse to accept it.
Once both parties agree that something is untouchable, however, only a truly extraordinary effort by citizens can bring about change. In this sense, the parties serve as formidable guardians for the rule of law.
The Affordable Care Act is not settled law because the public remains deeply divided over it: More than half of Americans are opposed. But even more critically, congressional Republicans have withheld their stamp of approval. Many Republican lawmakers refuse even to call it a law; they keep referring to it as a “bill.”
The Democrats thought they could use temporary control of the White House and both houses of Congress to foist ObamaCare upon the nation. But the way in which the act was passed alone was enough to ensure a troubled future. The Affordable Care Act was rammed through Congress using a novel legislative procedure (budget reconciliation) that, as Magliocca notes, left many Republicans feeling "cheated."
Another aspect of ObamaCare's birthing that makes it less likely that it will be settled law anytime soon: Unlike most transformative laws (Social Security and Medicare), ObamaCare did not have bipartisan support. Conservative concerns were “exacerbated” by a report that Chief Justice John Roberts had originally planned to vote to overturn the legislation but switched. So settled law it isn't.
On a practical level Secretary of the Treasury Jack Lew’s evasive performance on Fox News yesterday told you everything you need to know about ObamaCare’s all-important, first week: it was a disaster.
Lew would not answer when Chris Wallace asked him how many people signed up last week.
Here is the exchange (from the Weekly Standard’s website):
"I'm going to ask you one last time," said Wallace, "because, forgive me sir, you haven't answered it: do you not know how many people signed up, which would seem to indicate another major software glitch, or is it that the numbers are embarrassingly small?"
"Chris, our metric for this week was, could people get online, get the information they need to make an informed," said Lew, sidestepping the straightforward question. "They have been getting that information. We are confident that they are going to make the decision — they have 6 months to make the decision."
Wallace tried again: "So do you not know or is that the number is –"
"Well, it's obviously not my primary area of responsibility," said the treasury secretary.
The technology for ObamaCare–three years in the making–also seems to be a disaster, and not one that will be easy to rectify.