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  The answer is the Republican Party takes the position is that the statute should be repealed.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.

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13 Responses

  1. Ann Marie Marciarille says:

    Maybe it can fairly be said that parts of the ACA are settled, in the sense that they would likely either be carved out from a general repeal or quickly reinstated if repealed. This might include provisions such as the one extending employer-based family insurance coverage to children up to the age of 26, for example. With an estimated 7 million of the 15 million young people currently enrolled in parental health insurance after the age of 18 accessing this insurance because of the ACA, we hear little about the need to return to the status quo ante. See It is a middle class benefit, after all.

  2. Orin Kerr says:

    In my experience, the phrase “settled law” is only used to refer to rules deriving from judicial opinions and does not apply at all to rules found in statutes. Further, my sense is that the phrase “settled law” means only “law that can be accepted as fixed for purposes of the present discussion,” and does not have any broader intrinsic meaning.

  3. Joe says:

    “When I say the decision was made in a sort of way, I mean it was made in a divided Court, by a bare majority of the Judges, and they not quite agreeing with one another in the reasons for making it; that it is so made as that its avowed supporters disagree with one another about its meaning, and that it was mainly based upon a mistaken statement of fact”

  4. Gerard Magliocca says:


    I don’t quite agree. I think people also use settled law to refer to cases that are no longer open to question. Now it’s fair to say that this can never be true for a statute, though even there you can say that some statutes are untouchable politically.

  5. Shag from Brookline says:

    Perhaps ACA is “unsettling law.”

    Brown v. Bd./Educ. eventually became “settled law” after a long civil rights struggle. But Brown is “unsettling” even to this day of the 50th anniversary of the march.

    Plessy was “settled law” for some time but was also “unsettling” until Brown came along many years later.

    So perhaps we can expect “settled law” that is “unsettling” to be challenged eventually.

    The bigger challenge might be to address “unsettled law” like the power of the imperial presidency.

  6. Brett Bellmore says:

    I think that would be better described as “unsettled unlaw”; We really shouldn’t confuse habitual violation of the law with the law.

  7. Joe says:

    One other thing to remember is that ACA raises a range of legal issues, which are also not ‘settled’ by the USSC.

    There has not been ‘habitual violation’ of the law in question, at least, how such questions has been decided thus far. For instance, William Baude at Volokh Conspiracy noted the ‘unsettled’ nature of the freedom of corporations to have religious exemptions. This is something that is likely to reach the USSC at some point.

  8. Doug says:

    This is perhaps another example of the unremarkable proposition that people use short-hand labels to mean different things. Once you’ve defined what the label means, you have your answer. But there seems to be little point in debating the correct view of the label.

  9. Shag from Brookline says:

    Brett’s “Rumsfeld-esque” “unsettled unlaw” and “habitual violation of the law with the law” are laboriously amusing. But perhaps “unsettling” is whatever Brett disagrees with.

  10. Joe says:

    Bottom line, I agree with Doug too.

  11. Orin Kerr says:

    Gerard writes: “I don’t quite agree. I think people also use settled law to refer to cases that are no longer open to question.”

    I did a quick search for “settled law” in the Westlaw allcases database, and the phrase seemed to be used in judicial opinions only as a shorthand for ‘a rule established by existing appellate precedent.’ Here are examples from cases published last Thursday and Friday, with each quote from a different opinion:

    “It is well-settled law that review of a city’s decision to grant a CUP proceeds under Section 89.110. See Deffenbaugh, 802 S.W.2d at 524.”

    “We also note the settled law that inmate disciplinary appeals are not part of the criminal justice system and that inmates are not afforded the panoply of procedural rights afforded to an individual defending against a criminal charge. In Avant v. Clifford, 67 N.J. 496, 525–30 (1975), ….”

    “It is settled law that if a plan gives the administrator to determine eligibility for benefits or to construe the terms of the plan, that decision must be reviewed under an “abuse of discretion” or “arbitrary and capricious standard.” Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)”

    “Whereas the validity or enforceability of a contract containing an arbitration provision is an issue for a court to decide, it is settled law in this Circuit that disputes as to the scope of the parties’ agreement to arbitrate is for the arbitrator, not the Court. See Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119–20 (9th Cir.2008).”

    Of course, I realize that you have a different concept in mind, so I don’t mean to focus on the labels too much.

  12. Orin Kerr says:

    I should add that judicial nominees have been known to exploit the ambiguity of what “settled law” means to avoid controversial subjects at confirmation hearings. Nominees say that existing controversial law is “settled law,” which creates the impression to some that this nominee would not unsettle it. But when pushed, the nominees will explain (in so many words) that they are just making the banal observation that this rule is existing doctrine.

    See, for example, a few exchanges at Justice Sotomayor’s confirmation hearing:

    Sen. Herb Kohl, D-Wis.: “As you know, judge, the landmark case of Griswold v. Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?”

    Sotomayor: “That is the precedent of the court, so it is settled law.”

    Kohl: “In your opinion, is Roe settled law?”

    Sotomayor: “The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.”

    Sen. Orrin Hatch, R-Utah: “If a holding in the Supreme Court means it is settled, do you believe that — that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?”

    Sotomayor: “All precedents of the Supreme Court I consider settled law,” subject to the possibility of subsequent reversal.

  13. Shag from Brookline says:

    So it’s settled that settled law is settled until it is not?