"Why Obamacare isn't 'Settled'" Law

Interesting piece by Indiana U's Gerard Magliocca in the Wash Post about what it takes for transformative laws to become fully accepted as "settled." A snippet:

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.

Read the whole thing.

Interesting to think of other examples of how/when things become settled or not. For instance, it took about 25 years for Social Security to become "settled" in the way that Magliocca means. And it's also interesting and important to think about how some things - such as the military draft, say - become unsettled. 

Then there's the whole question of just signing up for the goddamn thing.

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  • The Late P Brooks||

    Republicans also cite the unusual procedures used to pass the health-care act

    This should be the first thing out of anyone's mouth when that "settled law" talking point comes up.

  • Dweebston||

    Anything being called "settled law" in this era of omnibus bills bloated with riders and wishlist legislation should give backers pause, left or right. Treating these abortions like glimmering centerpieces of the democratic process is wholly unamerican, like giving undue reverence to some foreign monarch's bab—oh Christ we're screwed.

  • Almanian!||

    these abortions

    BUT ROE v WADE MADE ABORTION SETTLED LAW®!!!1!

  • FYTW||

    Having argued about this with leftards, they respond by shrieking about the Bush tax cuts (which were also passed through reconciliation).

  • Aurthur||

    Nothing over until we decide it's over. Was it over when the Germans bombed Pearl Harbor?

    Somehow I do not believe Bluto would have signed up for obamacare, especially after he was elected to the senate and immuned.

    http://www.youtube.com/watch?v=q7vtWB4owdE

  • Fist of Etiquette||

    The Affordable Care Act is not settled law because the public remains deeply divided over it...

    That's turned into a rare sentiment around here lately.

  • ||

    I thought the 'fuck you because we say so' clause was supposed to bridge the division.

  • Austrian Anarchy||

    Just a cursory look at history should tell anybody that a law is not "settled" until it is repealed. This crap flies all over the place until it is gotten rid of. Slavery and pseudo-slavery laws are a perfect example. Obamacare is an example of economic slavery that needs to be tossed out.

  • Bardas Phocas||

    A good example is the 'Fugitive Slave Ace' that took a constitutional amendment to be overturned.
    http://en.wikipedia.org/wiki/F.....ct_of_1793

  • sarcasmic||

    Just as "compromise" means the left getting their way, "settled" means they got their way and there's nothing left to talk about.

  • ||

    See also "elections have consequences" turning into "Tea Party terrorist hostage-taking suicide bombers wanting to hold a gun against the head of the American people".

  • LynchPin1477||

    Everyone knows mid-term elections don't count.

  • LynchPin1477||

    Gerrymandering is also a popular talking point used to dismiss those elections. Though speaking more generally, gerrymandering does actually strike me as problematic.

  • Zeb||

    Gerrymandering always strikes me as something that your typical voter ought to be far more outraged over. Whether it is done to create safe seats for one party, or to improve or suppress the representation of minority groups, it's just politicians stacking the deck. Nothing expect how many people live in a certain area should be considered in making voting districts.

  • Brett L||

    In a state like FL or TX or CA you can create several hundred equally valid districts based on non-political factors, so once arbitrary things like where to start drawing lines and which direction to proceed start generating that many maps, chosing on political factors like demographics or past voting history seems just as valid as drawing one out of a hat.

  • Zeb||

    I think they should just draw one out of a hat, or have some algorithm. It just strikes me as a big conflict of interest when a legislature can make decisions that will affect its own makeup.

  • eyeroller||

    the parties serve as formidable guardians for the rule of law

    Uh, I'm sorry, WHAT?

  • LynchPin1477||

    In this context, rule of law means status quo.

  • Shirley Knott||

    For 'law' read 'legislation'. That's the only way it makes any sense at all.

  • Ken Shultz||

    I would add that it isn't settled yet because the full effects of the law haven't been put into practice yet.

    When the working poor get fined for deciding that they really can't afford health insurance after all--and most everybody's okay with that? then maybe we can talk about it being settled.

  • sarcasmic||

    I'm hoping some shit hits the proverbial fan when tens of millions of poor people find their tax returns are much smaller than anticipated.

  • Ken Shultz||

    There's also the issue of what happens when ObamaCare does worse than nothing to contain costs.

    If the penaltax is insufficient to make enough people sign up, they'll have a hard time raising the penaltax, politically, and if the cost of insurance and care keeps rising anyway?

    Lots of people will opt out of coverage.

    And this wouldn't be the first time that a government solution created more problems than it addressed. What if--despite ObamaCare--the cost of insurance keeps rising faster than inflation? What if that is happening because of ObamaCare?

    Most of the law still hasn't even been implemented, the effects haven't even been felt yet, and somebody somewhere is saying it's settled?

  • sarcasmic||

    What if--despite ObamaCare--the cost of insurance keeps rising faster than inflation? What if that is happening because of ObamaCare?

    Single Payer is the goal here, so the narrative will always be spun in support of that goal. If costs go up, the market will be blamed, and if anything is wrong with ObamaCare, it's that it didn't go far enough.

  • Ken Shultz||

    I'm not sure that was the goal, intentionally, but that very well may be where we're headed, in which case, the law sure as hell isn't settled.

    If even the proglodytes plan on changing the law, now, then it isn't settled.

  • sarcasmic||

    It's settled until they want to change it. And then they'll allow compromise as long as it means they get exactly what they want.

  • wareagle||

    it's the goal, Ken. Where people go wrong here is viewing the Obama administration through the usual prism - that we may disagree on tactics but the outcome is something most would see as good. Uh, uh. With BO, the desired outcome is 180 degrees from the norm.

    When all the possible reasons typically used for things going bad - stagnant employment, the rise of the part-timers, food stamp records - are exhaused, you have to consider the heretofore impossible. In this case, those outcomes were the goal, not mistakes.

  • Ken Shultz||

    "it's the goal, Ken. Where people go wrong here is viewing the Obama administration through the usual prism"

    I think where we go wrong, strategically, sometimes, is trying to sell these ideas to swing voters who maybe don't think Obama is a vampire.

    It happened the same way with George W. Bush. Many of the people we needed to agree with us, back then, didn't think Dick Cheney was Darth Vader.

    I don't know what's in Barack Obama's heart of hearts. I don't think he's trying to destroy everything that's good and holy. As wrong as he is, I suspect he thinks he's doing what's in the best interests of the American people...

    Regardless, there are an awful lot of swing-voters out there who think that's what he's about. And we need them to think ObamaCare is a bad idea--even if Obama isn't a vampire.

    In fact, it should be a lot easier to convince people who think well of Obama just that ObamaCare is a bad idea. ...easier than it is to convince them that ObamaCare is a bad idea after we've told them that we think Obama is a vampire.

  • Zeb||

    I think it's a bit much to say it's the goal. It is certainly a goal of many on the left. The ACA was created and passed by so many different interests that it is absurd to say that there is any single goal to the law.

  • sarcasmic||

    The ACA was created and passed by so many different interests that it is absurd to say that there is any single goal to the law.

    There are many short term goals, and one single long term goal.

  • Zeb||

    I don't think that is true. I think most supporters probably hope to see some sort of more universal plan in the future, but there are many models out there besides single payer.

  • Aurthur||

  • The Late P Brooks||

    Anything being called "settled law" in this era of omnibus bills bloated with riders and wishlist legislation should give backers pause, left or right. Treating these abortions like glimmering centerpieces of the democratic process is wholly unamerican

    That blithering ninny Savannah Guthrie who interviewed Rand Paul on Meet the Press was utterly flummoxed by his suggestion that Congress should be putting up and voting on the budget in comprehensible segments.

    The President needs a blank check. Anything less is like slavery.

  • VG Zaytsev||

    American journalists are amazingly moronic.

  • Sevo||

    "The President needs a blank check. Anything less is like slavery."
    It is the SF Chron, but the several comments (right there in black and white) compare Boehner's requirement for concessions to treason.
    Yep.

  • The Late P Brooks||

    I'm hoping some shit hits the proverbial fan when tens of millions of poor people find their tax returns are much smaller than anticipated.

    I think that's our best hope. "Where's my Christmas Club check? OMFG I WANNA NEW XBOX!"

  • Cdr Lytton||

    That'll last a year or two until people adjust their withholding to underpay. Then the Feds will either put teeth into the penaltax or just decrease the amount of allowable underpayment and increase penalties.

  • Auric Demonocles||

    They'll just deduct the penaltax first, and the underpayment means you owe regular tax, with all its teeth.

  • creech||

    Yet another example of why bills should not be signed into federal laws unless a super-majority - say 75% - agrees that the law is needed. Many of the most contentious laws in America, with a back and forth tug of war lasting decades, are because a small majority managed to push something through when they had the chance. Most people don't resent laws against murder, theft or rape which are truly "settled laws" in civilized countries, but tax rates, abortion,
    education standards, medical marijuana, etc. will remain contentious and subject to political warfare as long as one side of the other clings to narrow support.

  • Jordan||

    Indeed. And all laws should have to be regularly renewed with a super-majority.

  • Rich||

    The Affordable Care Act is not settled law because the public remains deeply divided over it

    With all due respect, then *practically everything* is not settled law. 8-(

  • LynchPin1477||

    I don't know if that's true. You don't hear about the things that people broadly agree on because, well, most people aren't interested in talking about it. That is part of what it means to be "settled". The contentious issues dominate the conversation, but I'm not sure they dominate the legal code.

  • Rich||

    Well, of course I exaggerate.

    However, *many* contentious issues dominate not only the conversation, but also the legal code: drugs, guns, surveillance, abortion, etc. Behold how divided the country is such issues. Good luck with "settling" the law.

  • Ken Shultz||

    What he's saying is that those issues can be dealt with but, on those issues, "only a truly extraordinary effort by citizens can bring about change".

    Obama would ban all sorts of guns if he could. He doesn't because he can't. People may still be divided on that issue, but it would take a truly extraordinary effort to change the status quo on that.

    With drugs and abortion, it's like that, too.

    I'm not sure surveillance is like that, yet, but that may be wishful thinking on my part.

  • Rich||

    What he's saying is that those issues can be dealt with but, on those issues, "only a truly extraordinary effort by citizens can bring about change".

    I'm not *quite* sure that's what he's saying -- LynchPin, care to weigh in?

    However, I think we have a semantic problem over the meaning of "settled". Another example. The tax code is apparently "settled" because no truly extraordinary effort by citizens appears to be in the offing.
    However, many (most?) citizens -- and congresscreatures -- claim that it needs "fixing". In that sense, it is *far* from "settled".

    Perhaps it's meaningless to think along these lines, since not even "Life, Liberty and the pursuit of Happiness" seems to be "settled law".

  • Ken Shultz||

    It would take a truly extraordinary effort to get rid of the income tax.

    You can tweak it, but getting rid of the idea of taxing people's incomes?

    Even some of my fellow libertarians have a hard time getting their heads around that.

    If ObamaCare ever gets like that, we're in big trouble. If it ever gets to the point where the overwhelming majority of people see the rightness of ObamaCare as a fact--like the way they think earning money means you owe the government? it's settled. It's settled, and it's going to take something extraordinary to unsettle it.

  • Rich||

    getting rid of the idea of taxing people's incomes?

    Get rid of *laws*, not *ideas*.

  • Ken Shultz||

    Very well.

    It would take something extraordinary to get rid of the law that lets them tax people's incomes.

  • Zeb||

    And so what if it is "settled" (whatever that might mean). We're not talking about courts here, this is Congress and they get to change the law if they want to, however they want to (theoretically within constitutional bounds). That's their role.

  • MJGreen||

    The Affordable Care Act is not settled law because the public remains deeply divided over it: More than half of Americans are opposed.

    Pfft, so? It's not like we're beholden to majoritarian rule, amirite?

  • Ken Shultz||

    Progressive Rule #1: The people want what we want.

    Progressive Rule #2: If the people don't want what we want a) call them "stupid rednecks" and b) see Progressive Rule #1.

  • sarcasmic||

    Progressive Rule #3: If the people still don't want what we want, it's the job of the courts to intervene.

  • MJGreen||

    Of course. It's the General Will, which is always right, even if the people don't want it.

  • sarcasmic||

    'The Will of the People' is the modern 'Divine Right of the King'.

  • DJF||

    “””’the Civil Rights Act of 1964”””

    A law which repealed laws forcing segregation and put in place laws forcing integration.

  • Austrian Anarchy||

    That last part is unsettling.

  • Pathogen||

    "Settled Law" is the name of the FYTW rubber stamp that federal jurists use to shill congressional policies, because "they are not there to protect us from the consequences of our political choices"...

  • Almanian!||

    So it's settled, then.

  • Cascadian Ephor Xenocles||

    Yes, it's settled law. Just like the nations of the world got together a century ago to outlaw war forever, so too has this law permanently fixed the way our health care sector works.

  • Auric Demonocles||

    And not-Obamacare was settled law 3 years ago.

  • Pathogen||

    Obamacare...

    "Betcha the morons who made it threw around the term foolproof quite a bit."

  • Biden's Scroteplugs||

    Obama is always descending billionaires and yet lands only on the middle class.

  • Auric Demonocles||

    Alt-text is settled law.

  • The Late P Brooks||

    You can tweak it, but getting rid of the idea of taxing people's incomes?

    Even some of my fellow libertarians have a hard time getting their heads around that.

    I might be one of those people; what difference is there, aside from semantic, in imposing a tax on my labor and imposing a consumption tax on the buyer of my labor?

    I like real numbers; when I sell the thing I am currently working on, I will receive a sum of money. I don't want to be taxed on it, but that is not (for the purposes of this discussion) an option. What meaningful difference is there whether the tax I pay is called a tax on "my income" or a sales tax on the art project staircase I fabricated and my customer "purchased"?

    I'd rather have a tax based on the dollar amount which actually changed hands than on some bullshit calculation of my assets.

  • ||

    From President Obama's signing statement on 2013's Defense Authorization Act:

    ... certain provisions in this bill, including sections 1225, 913, 1531, and 3122, could interfere with my constitutional authority to conduct the foreign relations of the United States. In these instances, my Administration will interpret and implement these provisions in a manner that does not interfere with my
    constitutional authority...

    Seems as if Obama's for "settled law" only when he isn't.

  • ||

    And, I should add: yes, I am aware that Elephant presidents have used signing statements in exactly the same way.

  • GroundTruth||

    Dred Scott anyone?

  • The Late P Brooks||

    In these instances, my Administration will interpret and implement these provisions in a manner that does not interfere with my
    constitutional authority...

    He misspelled "imperial".

  • Killazontherun||

    Reaction of an Obamadrone to getting the bill:

    http://www.mercurynews.com/nat.....s-bay-area


    Yet, like many other Bay Area residents who pay for their own medical insurance, they were floored last week when they opened their bills: Their policies were being replaced with pricier plans that conform to all the requirements of the new health care law.

    Vinson, of San Jose, will pay $1,800 more a year for an individual policy, while Waschura, of Portola Valley, will cough up almost $10,000 more for insurance for his family of four.

    . . .

    "I was laughing at Boehner -- until the mail came today," Waschura said, referring to House Speaker John Boehner, who is leading the Republican charge to defund Obamacare.

    "I really don't like the Republican tactics, but at least now I can understand why they are so pissed about this. When you take $10,000 out of my family's pocket each year, that's otherwise disposable income or retirement savings that will not be going into our local economy."

    . . .

    "Of course, I want people to have health care," Vinson said. "I just didn't realize I would be the for it personally."

    BWAHAHAHAHA!!
  • Killazontherun||

    More:

    "I'm not against Obamacare," Waschura said. "It's just the initial shock. I'm holding out hope that there will be a correction over a handful of years."

    But to Gray-Raine, the breast cancer survivor from the East Bay, that correction has already come.

    "Obamacare is a huge step in the right direction for those of us without employer coverage," she said, adding that she hopes everyone will "join in and make this new legislation a success for all."

    Residents of the Bay Area sound like nervous captive citizens of the Eastern Bloc. I couldn't live in a place where fear of what my neighbors may think motivates the words that come out of of my mouth. To be perfectly honest, I pity you people.

  • ||

    "Of course, I want people to have health care," Vinson said. "I just didn't realize I would be the one who was going to pay for it personally."

    This asshole deserves everything he gets.

  • Killazontherun||

    In my copy'n'paste above I had to delete the script for an attach pic alttext. Didn't notice the text getting mangled until it was too late.

  • Red Rocks Rockin||

    "I was laughing at Boehner -- until the mail came today," Waschura said

    Now who's laughing, now who's laughing?

  • ||

    The Democrats "We won, so there!" approach to debate isn't doing them any favors.

    If you're going to implement a vast, transformative, change in the social contract (and positive rights such as healthcare count as one), you need the consent of all major parties to the contract. The legitimacy of the government, and the social contract it entails, rests upon the consent of the governed. Any party, however small, can withdraw it's consent at any time. That's exactly what happens when blacks refuse to sit at the back of the bus, even though they are a minority and don't have the votes to pass desegregation through the legislative process.
    There is no inherent social obligation to do what the majority wishes. Anyone can withdraw their consent at any time by refusing to participate in society and refusing to obey it's laws.
    In this case, what is going on is that the people refusing their consent constitute such an enormous faction of society that they control enough seats in the House of Representatives to stop any other legislation coming through it.
    This is, in efgfect a massive sit-in by conservatives against the health-care law. It is an act of rebellion and civil disobedience, at the legislative level.
    This hasn't happened before because, frankly, nobody has ever attempted to ram a massive modification of the social contract upon which the nation is found down the throats of a minority so large they they actually control half of Congress.

  • Tony||

    Democrats had to do the work of winning elections and getting majorities to pass the law. Republicans have to do the same to repeal it. That's how it works. They don't get bonus points for being in the minority. Your post is absolute nonsense.

  • FYTW||

    Republicans did the work of winning elections and getting a majority in the House. The constitution requires that all spending bills originate in the House, and the House majority is under absolutely no obligation to continue funding shit it doesn't like just because you and your God-King Barry the Petulant really really want it.

    That's how it works. So fuck off, sockpuppet.

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