“The best way to get a bad law repealed,” Abraham Lincoln advised, “is to enforce it strictly.” Republicans who wish to undo Obamacare may hope for a milder remedy, but Barack Obama’s re-election, along with the imprimatur of the Supreme Court, have given rise to congressional Democrats’ ubiquitous defense of the legislation: It is the settled law of the land.
The huffy finality with which this is commonly pronounced is oddly familiar. On what other issue do we hear that debate is closed? More on that below.
What is “settled law,” precisely? As Professor Gerard Magliocca of Indiana University recently 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.”
In the summer of 2012, the Supreme Court upheld the constitutionality of Obamacare’s individual mandate and, to the casual observer, this would seem like an end to the law’s judicial challenges. But this is just one of the legal concerns the legislation has given rise to.
For example, as attorney Andrew C. McCarthy and others have noted, if the Obamacare mandate is a tax, per Chief Justice John Roberts, then the fact that the law was written in the Senate presents a problem. New taxes, and indeed all “money bills,” must originate in the chamber closest to the people: the House of Representatives. This is a function of Article I, Section 7 of the Constitution (“All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills”), derived from centuries of tradition, dating back to King Charles II, if not the Magna Carta of 1215.
On this count alone, notwithstanding persistent opposition to Obamacare among the public on which it has been inflicted, the law is not settled.
But let us suppose, for a moment, that Obamacare were crafted and passed with impeccable adherence to every legal tradition right back to Runnymede; and let us further suppose that Obamacare’s recent bump in popularity on the heels of the government shutdown brings its approval rating out of the 30s. Would that render Obamacare inviolate and “settled”?
Lots of inane things are and have been the “law of the land.” At a Massachusetts wake, mourners are prohibited by law from eating more than three sandwiches. In Alabama, it is illegal to wear a false mustache that causes laughter in church. And that’s before we consider that slavery, segregation, and the restriction of voting rights to white males were all once the “law of the land.”
Law is never “settled” just as science is not. They are both in constant flux, as new realities emerge.
To this, some might say, “Ah-ha! You are citing the settled nature of old law – the Constitution and beyond – to suggest that law can never be settled.” That’s fair enough, but the U.S. Constitution has been amended and interpreted many times to change its practical applications. Why should Obamacare be immune to such treatment? Indeed, President Obama has unilaterally amended the law several times already, absent any legal authority to do so, which begs the question why it seems egregious that duly elected members of Congress may wish to write some changes of their own, perhaps including a repeal.
But this “settled law” stuff is merely the anodyne expression applied to the current crisis (much like the “clean” spending bill Democrats have demanded). It is emblematic of the Left’s called-it, stamped-it, no-erasies, Black Magic, infinity-plus-one approach to policy. To wit, once they get the result they want, it’s frozen in carbonite like Han Solo and hung in Jabba the Hutt’s palace, with no hope of rescue by rebel forces.