[Ed. note: Has anyone broken the news to the “Constitutional law scholar” at 1600 Pennsylvania Avenue?]
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.”