Magliocca on Why Obamacare Isn’t “Settled” Law

Gerard Magliocca has an essay in the Washington Post explaining why it’s a mistake to characterize the PPACA (aka “Obamacare”), or the Supreme Court’s decision upholding the constitutionality of the individual mandate, as “settled law.”

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. . . .

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. . . .

As Magliocca notes, the extraordinary lengths taken to enact the law, and the insistence on passing the PPACA without any Republican votes,* are factors that make it more difficult for so many to accept it as “settled law.”

I find quite bizarre the repeated claims that the Supreme Court’s decision in NFIB v. Sebelius should somehow end debate on the PPACA and the individual mandate. Did the Supreme Court’s decisions upholding the Hyde Amendment or other limits on federal funding for abortion end debate over the wisdom or fairness of these policies? Of course not — nor should they have. These decisions did not dampen the debate over the underlying constitutional questions either. There is nothing inappropriate about abortion rights groups continuing to challenge these policies, politically and in the courts. By the same token, so long as a substantial portion of the American electorate opposes key elements of the PPACA, we should expect efforts to limit or overturn it. That’s how the system works.

*UPDATE: Some commenters object to my noting PPACA supporters’ “insistence on passing the PPACA without any Republican votes.”  This was a descriptive not a normative statement.  In the end, PPACA supporters faced the choice of whether or not to enact a sweeping health care reform law along party lines, and they chose to go ahead.  The alternative was, in all likelihood, to have no bill at all.  Many of those who continue to oppose the PPACA and seek its repeal cite make note of the partisan nature of the vote (and that some Democrats voted against the HCERA).  For instance, it is a common talking point that this was the first time a major entitlement was created without the support of a large bipartisan majority.  This is true.  Some people believe this is relevant in considering whether to consider a law to be “settled” such that it makes little sense to continue resisting it, others do not.  The point of this post (and, as I read it, Magliocca’s op-ed) was not whether such opposition is justified, but the fact of such opposition and how it influences our understanding of what is considered to be “settled” law.