The Meaning of Settled Law
In my advanced con law class this semester, one question that we are going to discuss goes like this: “Is Obamacare settled law?” The practical answer to that question is no. That fact, though, runs against a more orthodox or formalist view of the problem.
The Supreme Court upheld the Affordable Care Act in 2012. Why did that not settle the question? The answer is the Republican Party takes the position is that the statute should be repealed. As long as that is true, then you cannot say that the law is settled. (It may be settled constitutional law, but it is not settled law.) You can say something similar about contested Supreme Court cases. Roe v. Wade is not settled law because one of the two parties takes the view that it should be overturned. It doesn’t matter that Roe is forty years old and has been endorsed by scores of judges and scholars. Nowadays, law is only settled when both major political parties are on board.
The Republican presidential campaign in 2016 will go a long way towards determining the status of the Affordable Care Act. One would expect that some of the candidates will call for the Act’s repeal, but some might say something along the lines of “It’s Time to Move On,” or “That’s a Fight We Cannot Win.” If that latter view prevails, then (and only then) will the Act be settled.