Obaamacare Is Not Settled Law


I left the two “a”‘s in to make it sound like it was for sheep. Get it? Clever, huh? Sometimes I just kill myself with rapier wit…

Many have pointed it out here on the blog, but BambiCare did not originate in the House:

Contrary to Obama’s latest dissembling, the Supreme Court’s decision is far from an imprimatur. The president insisted that Obamacare was not a tax, famously upbraiding George Stephanopoulos of the Democratic-Media Complex for insolently suggesting otherwise. Yet, the narrow Court majority held that the mammoth statute could be upheld only as an exercise of Congress’s power to tax — i.e., contrary to Obama’s conscriptive theory, it was not within Congress’s commerce power to coerce Americans, as a condition of living in this country, to purchase a commodity, including health insurance.

Note the crucial qualifier: Obamacare could be upheld only as a tax. Not that Obamacare is necessarily a legitimate tax. To be a legitimate tax measure, Obamacare would have to have complied with all the Constitution’s conditions for the imposition of taxes. Because Democrats stubbornly maintained that their unilateral handiwork was not a tax, its legitimacy vel non as a tax has not been explored. Indeed, it is because Obamacare’s enactment was induced by fraud — a massive confiscation masquerading as ordinary regulatory legislation so Democrats could pretend not to be raising taxes — that the chief justice was wrong to rebrand it post facto and thus become a participant in the fraud.

We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

If you’ve followed our recent debate, you know I’ve argued that the continuing resolution (CR) — the legislation at issue in the current congressional impasse that has partially shut down the government – violates the Origination Clause. The Senate presumed to add Obamacare spending to a House CR bill. I contend that the Origination Clause means that not only tax bills but government spending bills must originate in the House because the Clause was intended to vest the House with control over the “power of the purse.” Matt disagrees.

Our dispute over Obamacare spending in the 2013 CR, however, has no bearing on the Origination Clause analysis of the 2010 Obamacare law itself. The Affordable Care Act, the Supreme Court has held, was a straightforward tax. No theorizing about spending is necessary. Everyone agrees that tax-raising measures must originate in the House.

Obamacare originated in the Senate.

From the Volokh Conspiracy:

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

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.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan or cross-ideological consensus about its correctness. If the balance of power on the Supreme Court shifts even slightly, it could easily be narrowed or overruled.

I would add that NFIB is also unsettled because there is deep disagreement about it among judges, scholars, and other legal elites. As far back as 2009, there was on expert consensus about the constitutionality of the Obamacare individual health insurance mandate and there is at least as much elite disagreement on the subject today as there was then, if not more. The closely divided 5-4 nature of the Supreme Court’s ruling on the case is just one indication of the lack of consensus. Moreover, the key swing voter – Chief Justice Roberts – actually accepted most of the case against the mandate, and “saved” it from invalidation only by significantly rewriting it. Sometimes, a decision reviled by many in the general public can nonetheless become firmly established because legal elites overwhelmingly support it. This is how some of the controversial Warren Court rulings of the 1960s eventually became untouchable. But, so far at least, nothing of the kind has happened with NFIB v. Sebelius.

8 thoughts on “Obaamacare Is Not Settled Law

  1. Reblogged this on Catholic Glasses and commented:
    No one read, understood nor approved of the Extortions of Senators Nelson and Landrieu to pass that illegal conscript. It is null and void from the beginning. Bribery and Extortion are against the law: and Democrats and Obama Regime engaged in it. Upside of all this is that: Ipso Facto it was done by breaking the laws, it is invalid and a crime.

  2. Reblogged this on News With a Catholic View and commented:
    This is such a train wreck it needs to be completely repealed. It does noting its proponents claim and will hut the working poor-which is increasingly coming to mean the majority of workers-the most. Everything that the President has said and continues to say about this law has been a bald faced lie.

  3. Pingback: Collected Great Recent Articles | Caldwell TEA Party

    • Old Vet: The American tradition of judicial review is actually older than America. The two literate Liberal/Progressives left in the US may remember the Dred Scott, Plessey vs Ferguson and the Fugitive Slave Act, for starters. By definition, there can never be “settled law” or “settled science,” but the Lib/Progs demand both. CDE

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