Thursday, October 03, 2013

Magliocca and Settled Law

Jason Mazzone

Co-blogger Gerard Magliocca writes that because Obamacare isn't settled law it is reasonable for Republicans in Congress to try to prevent its implementation. Gerard's notion of settled--to mean that there is a general consensus that a law is "just"--strikes me as odd, particularly in this context. It seems to me a more obvious argument by congressional Republicans would be that the individual mandate is unconstitutional and members of Congress therefore have an affirmative obligation to prevent it from taking effect. Sure, the Supreme Court upheld the provision but (congressional Republicans would say) as Abe Lincoln taught us a Supreme Court decision isn't the last word on the matter. And (still channeling congressional Republicans) the Court only upheld the statute by rewriting what members of Congress actually enacted (we would know: we were there). I'm guessing Gerard doesn't take this route because he thinks there isn't a reasonable case that the individual mandate violates the Constitution. But I'll leave it to him, if he wishes, to tell us if that is indeed why he resists defining "settled" in constitutional terms.    

Older Posts
Newer Posts