Obamacare as settled law, or not

This whole government shutdown and funding stalemate is sheer politics and lack of reason.

As noted here before, the House of Representatives’ effort to settle on a funding agreement that adds conscience protection to the ‘Affordable Care Act’ actually funds necessary government services, tried to avoid the now days old shutdown and asks for a delay in the implementation of Obamacare as the president has already granted, by executive order, to selective institutions, bodies and organizations.

Thomas Sowell points this out in National Review Online.

There is really nothing complicated about the facts. The Republican-controlled House of Representatives voted all the money required to keep all government activities going — except for Obamacare.

But on the idea that Obamacare is “settled law”, there’s considerable dispute. This WaPo opinion piece explains:

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…

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.

Ethics and Public Policy Center scholar George Weigel offered his opinion on why Roberts’ did that. It’s provocative. Take this snip of it posted by one of his colleagues:

The deepest of the “deeper truths” that one might find in Chief Justice Roberts’s opinion is that America’s success in forming a more perfect union, providing for the general welfare, and ensuring the blessings of liberty to our posterity ultimately rests on the strength of American political culture. And here, the sensus plenior of the Roberts opinion intersects with the social doctrine of Pope John Paul II, especially in the 1991 encyclical Centesimus Annus. Democracy, the Polish pontiff taught, is not a machine that can run by itself. It requires a critical mass of…men and women who have internalized the habits of mind and heart that make responsible self-governance possible…to make democracy work. Beneath the functions of democratic government lies the character of a people. And if the machinery has become dysfunctional, then it is time for the people to examine their conscience about the ways in which they are living their freedom: nobly or basely, selfishly or philanthropically, responsibly or dependently?

This was written before the last election, by the way.

And to note, a sensus plenior (the key to trying to understand Roberts’ decision) is “a fuller or deeper meaning, than can be apparent at first glance,” as Weigel explains in the original piece.

The chief justice thereby suggests that if “we, the people of the United States,” do not like the way the Congress taxes and spends, it is not only our prerogative but our responsibility to do something about it by electing new representatives who will tax and spend differently…

The second of the deeper truths implied by the Roberts opinion is that the Congress as presently constituted and currently functioning has too often been derelict in its constitutional duties. Thus at several points in his opinion, Chief Justice Roberts suggests, in some instances sharply, that the Congress should get serious.

No sign of that at the moment. But they’re facing the debt ceiling deadline next week, and anything could happen by then. Except, it appears, any fundamental agreement.

The mid-term elections are just over a year away. But you can still contact your congressional representatives, in the House and the Senate, whether anyone answers the phones or not. Emails, letters, visits to district offices, notes slipped under their doors if necessary, all convey the spirit of the electorate. We’re proving the adage…we get the government we deserve.