“Settled”

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.

via The Washington Post.

This argument is about Obamacare, but I would say it applies to all the various controversies where people seeking to affect the law labor under the belief that simply passing a law is all it takes to change the world.

The idea that unpopular laws can be pushed through is based on deliberately forgetting (or ignoring) that laws can be repealed. That it doesn’t happen very often doesn’t mean it wouldn’t happen very often if people started passing a lot of laws over and above and against the desires of the people whom they claim to be representing.

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.

An interesting way to look at the same question (from a slightly different perspective) is to guess where the end path might lead, or might have led, if things had been different. Is there a point where the two paths intersect?

In the case of health care, I think there is: there was genuine dissatisfaction over the way health care “worked” in America prior to Obamacare. So if one can list the real grievances, combine them with the real problems of the new law, and come up with a solution that resembles both what a reformed or corrected (“fixed”) Obamacare might look like and what a better initial solution to the health care problem (as might have been proposed in 2008 by a more far-seeing problem-solver), then that would be the end-goal that people of either party could and maybe should aim for.

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