Hey You Guys! It’s The Law!

David Gregory on Meet the Press:

Let me just raise this issue about ObamaCare, because I want to come back to that. One of the issues is that for conservatives, this has been such a huge issue, even though the law’s been passed and upheld by the court, they still argue, “No, there’s a basis to really try to make it better, to replace it, to get rid of it.”

Evan McMurry at Mediaite claims that “[l]iterally nobody is arguing” that the Affordable Care Act can’t be changed.

I’m no David Gregory fan by any stretch, but he’s certainly not a “nobody.” So, conveniently, Mr. McMurray of course does not mention Mr. Gregory in his piece.

Health and Human Services Secretary Kathleen Sebelius:

It was passed and signed three years ago. It was upheld by the Supreme Court a year ago. The president was re-elected. This is the law of the land.

We’ll leave aside the fact that some parts of the law were actually struck down, and agree with Secretary Sebelius that, for now at least, ACA is the law of the land. However…

President Barack Obama:

The Affordable Care Act is a law that passed the House, that passed the Senate, the Supreme Court ruled constitutional. It was a central issue in last year’s election. It is settled, and it is here to stay.

Settled, eh? That’s going quite a bit further than saying it’s the law of the land.

Sounds a bit like the President is arguing that the law can’t be changed because the Supreme Court ruled it (or most of it at least) Constitutional. More likely, he’s not really arguing it, but just implying it, so that his minions will go forth and repeat the misinformation–and people like Mr. McMurray can then blast conservatives for arguing against the parroted implication.

But of course, only conservatives go off with partial information, “like they’re dogs being shown a card trick,” in Mr. McMurray’s words. The Left would never do such a thing.

In the Washington Post, Gerard Magliocca writes:

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.

See how that works, Mr. Smartest Guy In The Room Former ConLaw Prof?

Of course, complicating all this is the fact that the Executive Branch has delayed or abrogated parts of the Law Of The Land that it finds inconvenient.

In other words, shut up, conservatives. You are merely “dogs being shown a card trick.” We’re trying to fundamentally transform America and you people are just getting in the way.

Alrightee then.


Ann Coulter has a piece on the topic.

And The Volokh Conspiracy weighs in, building on the aforementioned Washington Post piece.

And my favorite headline on the topic: “Obamacare is settled law like climate change is settled science.”


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