Obamacare is not 'settled law'

George Magliocca:

Gerard Magliocca is a professor of constitutional law at Indiana University. His latest book is “American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way.

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.”

Republicans offer several explanations for their rejection of the act’s validity. Most often, they note that the law was passed entirely with Democratic votes. This is in contrast to other major legislation, including the Civil Rights Act of 1964, which was enacted with overwhelming bipartisan support and thus became settled much more quickly.

Republicans also cite the unusual procedures used to pass the health-care act — most notably, the budget reconciliation process that avoided a filibuster while moving the final legislation through the Senate. This tactic left many Senate Republicans feeling cheated.

Republican suspicions about the legitimacy of the act were exacerbated by a report that Chief Justice John Roberts switched his position on the constitutionality of the individual mandate — the provision at the heart of Obamacare — late in the Supreme Court’s deliberations. According to unnamed sources who spoke to CBS News, Roberts initially sided with the conservative justices and started to draft an opinion striking down the mandate, but at some point he became “wobbly” and decided to join the liberal justices and uphold the bulk of the law.

Some Republicans go further and dismiss the claim that the 2012 election was a referendum on health-care reform. After all, Mitt Romney had passed a similar law in his own state. Others think the Affordable Care Act is just dreadful policy, which is a good enough reason in their view to deny its authority.
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The 2012 election was further tainted by the IRS abuse of Tea Party groups that opposed the law and the President.  Obama's voter suppression effort reduced the GOP turnout by as many as 5 million votes in 2012.  Because of that effort including the illegal IRA abuses his reelection can't possibly be used as a referendum on the despised law.