Balkinization  

Friday, October 04, 2013

A Reply to Jason

Gerard N. Magliocca

I think that Jason's constitutional definition of settled law doesn't quite work. The question is this--what distinguishes off-the-wall from on-the-wall opposition to something? If I call for the repeal of Social Security or the defunding of the program, people would call me a crackpot. It would not help my case if I said that my actions were based on sincere constitutional objections to Social Security. That might make me seem more crazy. Thus, constitutional opposition to the individual mandate does not do the work that Jason suggests.

The support of a major political party, though, makes a position reasonable. And this, I believe, would make the law unsettled. Now it is possible for a protest movement outside of the two parties to unsettle the law. It's just very hard to pull that off. If the GOP capitulates on the Affordable Care Act, then the chances of undoing it will be practically nil.  That dream will live in la-la land with the folks who want to abolish income taxes or paper money, both of which were once positions adopted by a majority of the Supreme Court.

Comments:

My issue with this, and your piece in the Washington Post, isn't that I believe Obamacare is "settled law" in the sense that everybody accepts that it's here to stay, largely for the best, and never going away (the way they do with Social Security). It's the implication that somehow Obamacare's status as to some degree "unsettled" justifies the tactics used by its opposition - refusing to implement major portions, actively working to sabotage its success, shutting down the government, and threatening a default on the nation's debt.

Lots of things may be "unsettled"... that doesn't mean that total scorched earth tactics are justified to try and get them to settle your way.
 

"The question is this--what distinguishes off-the-wall from on-the-wall opposition to something?"

Objectively? Nothing. Calling something 'settled' is just a rhetorical tactic meant to make it untouchable.
 

I think the first comment is on point though it is not my only issue (Volokh Conspiracy linked to it and some of the comments are useful).

The law was passed in 2010. "Settled law" is an amorphous label, but it probably takes more than three years, though a presidential election is pretty notable.
 

If the scorched earth tactics are unpopular, then Republicans will
lose the House.
 

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"If the scorched earth tactics are unpopular, then Republicans will
lose the House."

I don't know why you seem so certain of this. Thanks to gerrymandering, it would take a wave election (D+7) in order for the Dems to take the House. That's unprecedented in recent American history (not sure about the 1800s).
 

Shutting the government down over the ACA is merely one element of a larger Republican scorched earth strategy in which multiple democratic norms are sacrificed: Tushnet's constitutional hardball.
 

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Regardless of Democratic hyperbole, something is "settled" when it's settled: when people accept it, one way or another. That doesn't mean it can't become unsettled again at a later date.

The problem this time is that the issue is not settled for a vocal and powerful minority.

http://www.latimes.com/business/hiltzik/la-fi-mh-obamacare-20131001,0,4909537.story

"Tax credits for small businesses to buy insurance: 88% in favor.

Closing the Medicare drug benefit doughnut hole:
81% in favor.
Extension of dependent coverage to offspring up to age 26: 76% in favor.
Expanding Medicaid: 71% in favor.
Ban on exclusions for preexisting conditions: 66% in favor.
Employer mandate: 57% in favor.

If you agree with those provisions, congratulations: You love Obamacare. Yet when respondents are asked how they feel about "Obamacare," they're against it.

The one provision that always polls negatively is the individual mandate. Unfortunately, the mandate is necessary if you're going to outlaw exclusions for preexisting conditions. Without it, you'd bankrupt every health insurer in the country, because people wouldn't enroll until they're sick."


http://www.thedailybeast.com/articles/2013/10/03/gop-donors-revolt-against-republican-led-government-shutdown.html
--On a Monday last month, Rep. Greg Walden, chairman of the National Republican Congressional Committee, met with some top GOP donors for lunch at Le Cirque on Lexington Avenue in Manhattan. The donors, a youngish collection of financial industry types and lawyers, had some questions for Walden, a mild-mannered lawmaker from eastern Oregon known for speaking his mind.

Why, they asked, did the GOP seem so in the thrall of its most extremist wing? The donors, banker types who occupy the upper reaches of Wall Street’s towers, couldn’t understand why the Republican Party—their party—seemed close to threatening the nation with a government shutdown, never mind a default if the debt ceiling isn’t raised later this month.

“Listen,” Walden said, according to several people present. “We have to do this because of the Tea Party. If we don’t, these guys are going to get primaried and they are going to lose their primary.”--

The meeting with Cruz and Republican Poobah's ended up a meeting with "a lynch mob"
http://www.nytimes.com/2013/10/04/us/politics/gop-elders-see-liabilities-in-shutdown.html?hp&_r=0






 

Perhaps this morning's House GOP "Caucruz" meeting will give a "Tip of the Hat" to Gerard for his Op-Ed that will make their "shutdown" a settled GOP principle.

Perhaps Gerard can tell us what John Bingham would have said about the "shutdown" and what is settled law. Bingham lived long enough (he died in 1900) to be aware that the 14th Amendment was unsettling to many with Jim Crow settling in, including Plessy v. Ferguson that continued for over half a century after Bingham's demise. And is the 14th Amendment finally "settled" by Gerard's standards some 140+ years after its adoption, especially its Section 4? I think there's a new book developing.
 

Why the hell would it be 'settled'? My God, we're talking about a law whose Congressional majority was so transitory that it couldn't have passed the House again by the time the Senate voted on it! Which had to be forced to a vote in both chambers before it could be read, lest the public have time to complain before it could be voted on. A law which got not one solitary vote from the party now controlling the House, and which couldn't even get the votes of all Democrats. Bipartisan? It wasn't even "partisan", it was sub-partisan!

While it nominally meets the formal requirements to be a law, there exists no normative reason AT ALL for opponents to have any respect for it, or to refrain from any even marginally legal avenue to undo it.

Democrats thought a narrow, transitory majority was enough justification to casually screw with a sixth of the economy, that the bare power to do something was enough to have the right to do it.

Well, you got what you wanted: Open war between the parties, to the death. Hope you lose it.
 

Brett's "anarcho-libertarian" rant ends with:

"Well, you got what you wanted: Open war between the parties, to the death. Hope you lose it."

further demonstrating he has truly lost it (and I don't mean a war). Hopefully NSA (has it been shutdown?) will keep in mind that this is only First Amendment-speak by Bwana Brett (GWH*) and not his absolutist 2nd Amendment-speak; no, this is not a death threat by Bwana Brett, who's really a cuddly pussycat.

*Great White Hunter
 

Brett: "Why the hell would it be 'settled'? My God, we're talking about a law whose Congressional majority was so transitory that it couldn't have passed the House again by the time the Senate voted on it! "

Incorrect; it couldn't have passed the Senate, under super majority rules. I would ask if you can keep your facts straight, but we all know the answer to that.
 

Is Brett still not aware that Obama won the last election?
 

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