Gerard Magliocca is a professor of constitutional law at Indiana University. His latest book is “American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”
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. But a more practical rule of thumb is that both political parties must agree on its legitimacy. Roe remains unsettled after 40 years primarily because Republicans refuse to accept it.
Once both parties agree that something is untouchable, however, only a truly extraordinary effort by citizens can bring about change. In this sense, the parties serve as formidable guardians for the rule of law.
The Affordable Care Act is not settled law because the public remains deeply divided over it: More than half of Americans are opposed. But even more critically, congressional Republicans have withheld their stamp of approval. Many Republican lawmakers refuse even to call it a law; they keep referring to it as a “bill.”
Republicans offer several explanations for their rejection of the act’s validity. Most often, they note that the law was passed entirely with Democratic votes. This is in contrast to other major legislation, including the Civil Rights Act of 1964, which was enacted with overwhelming bipartisan support and thus became settled much more quickly.
Republicans also cite the unusual procedures used to pass the health-care act — most notably, the budget reconciliation process that avoided a filibuster while moving the final legislation through the Senate. This tactic left many Senate Republicans feeling cheated.
Republican suspicions about the legitimacy of the act were exacerbated by a report that Chief Justice John Roberts switched his position on the constitutionality of the individual mandate — the provision at the heart of Obamacare — late in the Supreme Court’s deliberations. According to unnamed sources who spoke to CBS News, Roberts initially sided with the conservative justices and started to draft an opinion striking down the mandate, but at some point he became “wobbly” and decided to join the liberal justices and uphold the bulk of the law.
Some Republicans go further and dismiss the claim that the 2012 election was a referendum on health-care reform. After all, Mitt Romney had passed a similar law in his own state. Others think the Affordable Care Act is just dreadful policy, which is a good enough reason in their view to deny its authority.
Will they change their minds? What leads a political party to accept as settled law something it earlier contested? In the past, determined resistance to transformative statutes has shifted only when and if it became clear that standing on principle was doomed to fail. Party leaders either lost power or became very afraid of losing power.
Take the fight over the Bank of the United States in the 1830s and 1840s. This private central bank had been created by Alexander Hamilton and destroyed by Andrew Jackson, in part by withdrawing all federal money deposited there. Supporters of the bank, such as Daniel Webster, desperately sought to save the institution or create a new one. It took a decade of political setbacks and upheaval (including a partial government shutdown in 1842) to convince them that their cause was hopeless and that the bank debate was over.
There was, of course, nothing inevitable about this result. Sometimes it’s true that “once you sink that first stake, they’ll never make you pull it up,” as Robert Moses, the famed master builder of New York City, said. The implementation of a statute and the creation of regulatory institutions can make it more difficult to reverse course. Implementation creates its own reality on the ground, makes people accustomed to a new law and tends to diminish opposition, even if people remain less than thrilled.
That’s why House Republicans are actively seeking to delay the rollout of the rest of the new health-care law. They know their task will be harder once the law is in full effect. The time for them to take a stand is now.
Even if health reform goes forward, this may be a protracted fight. Other major statutes have been repealed after being subjected to unrelenting criticism. House Republicans are hoping that the Affordable Care Act will be one of them.
Read more: Francis Fukuyama writes we’re still fighting over Obamacare because America was designed for stalemate.