Why the Affordable Care Act is Not Settled Law

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Brett Bellmore says:

    Might want to correct that link.

  2. Gerard Magliocca says:

    Fixed.

  3. AF says:

    Your op-ed relies on the unsupported and obviously incorrect premise that unless a federal statute is “settled law” in the “broader sense of that phrase,” ie, unless
    “there is a broad consensus that it is just,” it is “not illegitimate” for a party controlling one branch of Congress, but not the other branch or the Presidency, to “use every lawful means at their disposal to stand in its way,” which presumably includes shutting down the US government indefinitely and defaulting on US debt.

  4. Bill says:

    LMFAO!!! That op-ed is perhaps one of the most ridiculous pieces of “legal reasoning” I’ve ever heard! I suppose that’s why it is offered as an opinion, rather than as a fact. The ACA is “the [SETTLED] law of the land,” as of June 28, 2012!

    A federal statute becomes “settled law” when there is no longer any legal obstacle to its validity. Congress drafts the bill; the President signs it; and (if there is judicial interpretational conflict or challenge to the law’s Constitutionality) the Supreme Court steps forward and puts the baby to rest.

    In THIS case – much to the chagrin of some – the Court put that baby to rest in FAVOR of the statute’s validity. In other words, they “settled” the matter. Mr. Magliocca proffers an absurd illustration of a perceived difference between Brown v. Board of Education and Roe v. Wade, arguing – rather unconvincingly – that one is “settled law” and the other is not because one received “broad acceptance” by both political parties. Beyond being laughable on its face, he extends his logic to demonstrate that the Civil Rights Act of 1964 and the Voting Rights Act are “settled law” because both political parties agreed on their legitimacy; that it would take an “extraordinary effort” to bring about change to them; and that is “totally unacceptable to criticize” them in 2013.

    Oh, wait … he didn’t mention the Voting Rights Act, huh?

    Well listen … all you people out there – irrespective of political and/or ideological bent; and irrespective of whether or not you continue to insist that President Obama produce his long-form birth certificate (and prove to your satisfaction) that he was not born in Kenya before you will accept as “settled” that he is the President of the United States in 2013 – the bottom line is that you’ll get more chances in the future to invalidate the Affordable Care Act, when we get one or two new Supreme Court justices and the constitutionality of the Act again makes its way up before that judicial body. But … MAKE NO MISTAKE … as of June 28, 2012, the Act is the SETTLED law of the land.

    Dah-duh-deet-Dah-duh-deet-Dah-duh-deet-Dah-duh-dat’s all folks!!!

  5. Mike S says:

    Got to say, hard to believe this was written by a law professor. Tea Party supporter yes but a law professor? To take just one example, how could it plausibly be relevant as a legal matter that a faction of the Republican party was disappointed in Chief Justice Roberts’ vote to uphold the individual mandate? Does that somehow give them a right to shut down the government? Silly all around.

  6. Brett Bellmore says:

    No, the fact that they’re the majority in the House, and a continuing resolution requires passage by both chambers, gives them that right. Their opinion of the Chief Justice has no relevance at all.

    As I’ve said before, the whole notion of “settled” law is nothing but a rhetorical ploy, an attempt to set some areas of law outside legitimate challenge. There’s law, and there’s non-law, but “settled” law? The concept has no legal significance.

  7. George Conk says:

    More on settled law. George Will today:
    In an interview with NPR’s “Morning Edition,” host Steve Inskeep asked Will about President Barack Obama’s argument that Republicans are short-circuiting the system by using government funding and the debt ceiling as leverage to dismantle Obamacare, rather than repealing the law outright.

    “How does this short-circuit the system?” Will said. “I hear Democrats say, ‘The Affordable Care Act is the law,’ as though we’re supposed to genuflect at that sunburst of insight and move on. Well, the Fugitive Slave Act was the law, separate but equal was the law, lots of things are the law and then we change them.”

    Will said that one party using the debt ceiling as leverage to extract concessions from another is “not novel,” but said it’s unlikely Republicans could use that strategy to thwart Obamacare.

    “It wouldn’t work. A tactic is supposed to have at least an articulable path to victory and success, and I don’t see it.”