Balkinization  

Thursday, October 03, 2013

Why the Affordable Care Act is Not Settled Law

Gerard N. Magliocca

Here is my op-ed in the Washington Post.

UPDATE:  Sorry, this is now open for comments.

Comments:

You could at least point out that an argument that a law is illegitimate because legislative chicanery allowed it to be enacted by simple majority rule is asinine.
 

"[I]t is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way" is too dodgy. One can use every legitimate and lawful means to reverse any policy one opposes, no matter how "settled" it has been. `Separate but equal' was pretty well settled, scarcely challenged until Shelley v. Kraemer. Legitimate means then included civil disobedience since the Jim Crow laws were in such blatant disregard of the plain meaning of the 14th Amendment and the duty to guarantee equal protection - a failure which the settled doctrine of the United States Supreme Court long accommodated. Even post-war in Sweatt v. Painter the Court merely said that the `equal' node of `separate but equal' should be heeded.
A more appropriate question for this moment is `Is it responsible to disrupt normal non-germane government operations as a wedge to gain an agreement to de facto amend or repeal a law that reforms the health insurance system and expands federal subsidies for those whose income is so low that the private market cannot accommodate them?'
To that I suggest the answer is NO - even if you believe that such subsidies and intervention in the health care market are bad policy.
 

Agreed, at one time "separate but equal" was as settled as law gets, and yet, here we are. The concept of "settled law" is of no value.

And to that, the answer is yes, it is perfectly appropriate to use such tactics to abolish a law which is destroying the health care financing system, and having numerous other horrible effects advocates gloss over.
 

Brett says:

"And to that, the answer is yes, it is perfectly appropriate to use such tactics to abolish a law which is destroying the health care financing system, and having numerous other horrible effects advocates gloss over."

Perhaps Brett can detail: (1) exactly how Obamacare is destoying the health care financing system [insurance industry] and (2) the other horrible effects advocates gloss over. Just saying doesn't make it so.

Gerard is in the process of hyping his recently published book with an Op-Ed on what may be his next book. At Concurring Opinions Gerard frequently comes up with streams of consciousness posts on possible book subjects he may be considering, hoping - sometimes beyond hope - that one sticks - his latest being on what is "settled law," the subject of his Op-Ed. As I recall, there wasn't much sticking on his posts on Concurring Opinions on just what is settled law. Justice Sutherland is another recent recurring subject of Gerard's posts at Concurring Opinions that may prompt a future Op-Ed as Gerard pumps his new book on John Bingham. Realizing how busy it must be for a tenured constitutional law professor just preparing for and teaching students, Gerard's multi-tasking is amazing. Whether or not Obamacare is settled or unsettled, maybe Gerard needs a Zantac - presumably available under Obamacare. {I am aware that Zantac is available over the counter and doesn't work on sarcasm.]
 

This comment has been removed by the author.
 

Gerard:

More than half of Americans are opposed. But even more critically, congressional Republicans have withheld their stamp of approval.

I would switch the emphasis here.

The reason both Roe and Obaamcare are unsettled is because they do not have majority to supermajority support of the voters.

The Republicans are responding to their constituents. After getting shellacked in the 2008 election, large swaths of congressional Republicans were ready to join or simply stand aside while the Democrats enacted Obamacare. What changed the GOP position was the rise of the Tea Party rebellion raising hell at town hall meetings and eventually by assembling hundreds of thousands outside the capital.

Once again, there are large swaths of congressional Republicans ready to fund the President's preferred government. The GOP solidarity in demanding changes is born of fear of constituents that have been melting down their phones and servers demanding they do what they were elected to do.

The anti-abortion, civil rights and anti-slavery movements similarly challenged the unsettled laws of their days.

If the people do not care, their elected representatives will take the path of least political resistance.
 

The Daily Beastinadvertently reported on the dilemma faced by a GOP establishment caught between its power brokers and its voters during the Obamacare wars.

Imagine that! The voters are actually driving the train in one of our political parties for once in our democratic republic.
 

Imagine that! The voters are actually driving the train in one of our political parties for once in our democratic republic.
# posted by Blogger Bart DePalma : 10:28 AM


Too bad for you clowns that it's the minority of voters who are in favor of this stupidity.
 

Hell, not even a majority of Republicans approve of this stupidity.

"Do you approve or disapprove of partially shutting down the government over differences about the 2010 health care law?"


Approve Disapprove Unsure/
No answer
% % %

ALL

25 72 3

Republicans

48 49 3

Democrats

12 86 2

Independents

21 76 3


http://www.pollingreport.com/budget.htm
 

Shaq,

You've provided an excellent definition of blogging.
 

BB:

The GOP did not shut down the government and its voters are blaming the other side.

http://www.cbsnews.com/8301-250_162-57605822/poll-americans-not-happy-about-shutdown-more-blame-gop/

Get past the CBS spin and go to the actual data.
 

Blankshot, I posted actual polling data. Not even a majority of Republicans are happy with what you dumbfucks have done.

Did you even read that article? It destroys you.


 

Interesting. Particularly the question about compromise: 61 percent of DEMOCRATS think the President and Democrats should compromise, rather than sticking to their guns.

 

BB:

Once again, bypass the CBS Democrat media spin, go straight to the data and think for yourself.

As I predicted, Republicans and Democrats are blaming the other party and the Indis are blaming both.

The Democrat position is far worse than in 1995 after which the voters reelected the GOP Congress and Clinton then signed of on the GOP balanced budget plan.

The GOP cannot politically lose this standoff so long as they continue to do what their voters demand.
 

Blankshot, read the polling numbers for blame. They don't support the idiocy you are posting in here.

44% blame Republicans
35% blame Democrats

Only in some loony alternative universe is that good news for you.
 

BB:

The only folks the GOP needs to be concerned with are the voters who elect them.

No one else matters politically.
 

Yes, assuming you plan to never control the Senate or White House again those are really great poll numbers for you.
 

BB:

If (unlike in 2012) the voters show up in the majority of the House districts held by the GOP, the Republicans will take the Senate in 2014 and the White House in 2016.

Of course, those voters will not show up if the GOP is not working on their behalf.
 

Blankshot, you really need to look at that poll. The voters think that you're idiots.
 

Democrats have already compromised by cutting spending as part of the CR that was sent back to the House.

Giving in to extortionists/jihadis is no way of governing. Using the budget process to get what you couldn't achieve legislatively, electorally or legally makes the US ungovernable.
 

Agreeing to continue last year's sequester slowdown of the increase in federal spending is not a spending cut.

Congress has not actually cut spending since Eisenhower.
 

Only in the mind of an extortionist/economic terrorist can the Democrats saying "I'd prefer to have spending at $X, but I'll agree to spending at $Y" (where X > Y) not be considered compromise. But then again the ability to lie to oneself such that this is a "Democrat shutdown" is at the key feature of the extortionist's/terrorist's nihilistic world view.
 

Unknown appears not to be aware of the special definition of "compromise" here wherein Dems are trying to get everything they want unless they agree to "x" -- "x" being an open variable.
 

The wingnut version of compromise is "give us everything we want and we won't blow up the economy until we want something else."
 

mushr00m:

"You could at least point out that an argument that a law is illegitimate because legislative chicanery allowed it to be enacted by simple majority rule is asinine."

And it wasn't even a 'simple majority'; it got 60% of the Senate.
 

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