Why it is not “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.
Indeed. There are more cases pending, and if they reach SCOTUS, they may still overturn the law (particularly given the ruling that it is non-severable). It will simply happen on some grounds other than those previously argued. Also, unless Roberts’ decision arose from his being blackmailed (I wish I could be sure that it wasn’t), he probably learned a lesson from it, and won’t pass up another opportunity to strike it.
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. . . .
In other words, Obamacare is settled law when the GOP says it is.
There is no such thing in the Constitution as “settled law.” This is a leftist fiction. Any law can be changed, any law can be completely repealed, at any time.
I wouldn’t say it is “leftist fiction”, rather “leftist convenience”.
Jim’s stupid argument can easily be flipped: “Abortion is settled law when the DNC says it is.” or probably more current “Congressional authority to invade Iraq is settled law when the DNC says it is.”, but certainly “The 2nd Amendment is settled law when the DNC says it is.”
However, the notion that anything is “settled” does seem to be a resonating tone with leftist these days.
To the degree that there is such a thing as “settled law,” it means that it has been in place for a long time (generally generations), has been thoroughly litigated with a lot of case law associated with it, and is well understood. To say that that’s the state of ObamaCare is ludicrous.
This is correct. Even stare decisis is just a doctrine for judicial review, not a constitutional requirement. Good thing, too, or we’d still have some very bad laws on the books, otherwise.
Another thing to keep in mind is that each branch independently has the right to decide whether something is constitutional (or otherwise appropriate) or not. So far as it is acting within its powers, it can unilaterally act on that belief.
In the case of the current business with the House, the House clearly has the legal right to not fund anything in the budget (or a CR, though that’s of questionable legality here). It appears odd only because we don’t consider limited funds when we do budgets these days. In other words, instead of mapping up expenditures to revenues, we just keep ignoring the difference between the two and enacting more and more laws that incur more and more expenses.
If we did it the responsible way, every year some things would get funded, and some would not. The House is supposed to have the killer power here–it’s been there since the beginning. Yes, they have to negotiate with the other branches to avoid a total standstill, but this is something that should happen regularly, not once in a blue moon.
That’s funny, coming from the people upending 100,000+ years of “settled law” to give us Gay Marriage……
Slavery was “settled law” in the US for decades, even supported by Supreme Court decisions like Dred Scott. It’s kind of funny to hear some of the same people who champion the notion of a “living Constitution” (meaning they can change its meaning whenever it suits them) also claiming that things they favor are “settled law.” It’s also kind of funny how there’s this legal ratchet action where changes are only acceptable if they move in one direction.
When you don’t have a solid, theoretically-objective moral foundation, you get to be like Democrats. There’s no principle: everything is argued as to how it works in their favor, no matter how much that clashes with what was said yesterday. It’s how Obama can say that strikes are bad, and get applause.
“We’ve always been at war with Eastasia.”
“In other words, Obamacare is settled law when the GOP says it is.”
In other words, you long for the re-instatement of Dred Scott.
According to the SCOTUS of the time, as slaves were private property, Congress did not have the power to regulate slavery in the territories and could not revoke a slave owner’s rights based on where he lived.
So the Dred Scott Case ended the prohibition of slavery in federal territories and prohibited Congress from regulating slavery anywhere, overturning the Missouri compromise, enabling “popular sovereignty”.
According to you everyone should have just shut up because of the Supreme Court findings in this case.
Settled law.
Luckily for humanity you are completely ignored because we subsequently got three constitutional amendments ratified shortly after the Civil War: the Thirteenth, Fourteenth and Fifteenth amendments, abolishing slavery, granting former slaves citizenship, and conferring citizenship to anyone born in the United States.
Thanks for the history lesson!
Seriously, I wasn’t making an argument, just restating a line from the linked article. I don’t think I’ve ever described Obamacare as settled law. It’s current law, and current law can be changed. I think the writer is correct that once both parties accept the legitimacy of a law, it’s less likely to be repealed. But unlikely isn’t impossible; circumstances change, people and parties change their minds, etc.
“Seriously, I wasn’t making an argument…”
Oh yeah right. You were just making a snarky remark which was designed to inflame and place blame.
Nice training you got there from Obama and the other Alinsky-ites.
You know this is a new low for you – even given this past week of your prevarication, distraction, trying to change the focus of the debate to something which is utterly irrelevant, lies and distortion.
You toss a statement like a grenade into the conversation and when it’s shown just how imbecilic that statement was, you have the temerity to say you weren’t really trying to make an argument.
Sorry – not buying it.
“Never mind” – Emily Litella
All discussion of Dred Scott aside, the 13th Amendment ended Slavery.
It becomes “settled law” when the President of the United States decides to abide by it rather than pick and choose the convenient provisions.
What you have enunciated here is just a U.S. domestic political version of the “Brezhnev Doctrine” declared by the late dictator of the late Soviet Union. To paraphrase, it held that the gains of international socialism were to be considered irreversible. We all saw how that worked out.
Aside from the hideous monstrosity that is Obamacare, BHO’s main political legacy will be a completely unprecedented string of offenses against the presidential duty, specified in Article 2, Section 3 of the U.S. Constitution of seeing that the laws are faithfully executed. BHO treats the law like a Chinese restaurant menu; “Today, I’ll enforce two from column A, but none from column B.” Obamabots like yourself don’t seem to have a problem with this sort of thing when The One is doing it. I’m guessing your reaction would be a bit different if Pres. Ted Cruz or Scott Walker or Rand Paul decided to treat Obamacare or the National Labor Relations Act as Obama did the Defense of Marriage Act and much of statute immigration law.
I’ve seen my Progressive friends on Facebook deploying that idea; “it was voted on, the President signed it, and the Court said it was legal! It’s a LAW! You can’t oppose a law by defunding or delaying it! BECAUSE LAW!”
My God, I swear I even saw someone saying that the Democrats couldn’t be expected to ever compromise on the ACA, because “it was their big achievement”.
That’s right – they passed it, and now you have to support it because only the other side has to compromise.
…
Of course, the moment it’s the Left opposing some Horrible Thing the Right did, plainly none of that will matter, and the bad polling will suddenly be “real”, and it’ll be Democratic Duty To Undo That Terrible Law.
(I’m sure the same hypocrisy is true of some on the Right, but it’s not being highlighted right now.
And over here in independent/libertarian-land, I just think it’s hilarious. In a black comedy sort of way.)
But the President himself is compromising on the ACA at his convenience, enforcing those provisions that suit his agenda, not enforcing other provisions.
Indeed. I wonder just how he can change the law to make businesses exempt for one year. How is this possible?
Obama isn’t changing the law. He’s just selectively ignoring parts that are inconvienent or for political advantage, such as giving waivers to selected cronies and donors. He gets away with breaking the law because no one will challenge him on it and make it stick. The House can pass any legislation it wants but nothing gets past the Senate. We. Had an opportunity to end this last November but it didn’t happen.