The Duplicity of Barack Obama on 'Settled Law'

Throughout 2013, President Obama and Senate Majority Leader Harry Reid (D-NV) have frequently referred to the Affordable Care Act (ACA) as “settled law.” They argue that as the ACA was passed by Congress, survived a Supreme Court challenge, and survived the 2012 elections, Republicans should just accept – and even help facilitate – the rollout of the ACA.

Rhetorically, the settled law argument is a powerful one that has been oft-repeated by politicians and pundits alike. Unfortunately, it’s also a dishonest argument, considering the numerous changes that have been made to the ACA by legislative methods or administrative fiat.

According to the Constitution, the primary function of the Legislative Branch is to enact and modify legislation. Also according to the Constitution, the President may veto legislation Congress passes. However, no president should act to undermine Congress’ acting within its legitimate Constitutional scope, which is what the “settled law” argument does.

President Obama has appeared to agree with this assessment in the past, and not been averse to working with Congress to change Obamacare if it suits his agenda. In October, Senator Chuck Grassley (R-IA) outlined 13 legislative changes to the ACA since it became law in March 2010. All of these changes were signed into law by President Obama.

The President has also made many unilateral changes to the ACA. In the same speech, Sen. Grassley highlighted five ways President Obama has changed the ACA unilaterally since February. Furthermore, the President has delayed the HHS contraception/abortifacient/sterilization mandate twice – in 2012 and 2013.

More recently, the President has decided to take matters into his own hands again, unilaterally (and probably, illegally) extending the health exchange enrollment period, as well as declaring that those facing cancellation could keep their health plans through 2014. Just last week, Obama has asked insurers to extend the deadline for accepting premiums for new plans, treat out-of–network providers the same as in-network ones, and cover prescriptions that were filled under previous policies.

The notion of the 2012 election affirming Obamacare as “settled law” is also problematic for two reasons. First, it denies the legitimacy of the Republican landslide election of 2010, which resulted from a nationwide backlash against the passage of the ACA. Secondly, if the 2012 election affirmed anything, it was the promises of Obamacare, the majority of which hadn’t even gone into effect yet. The still unfolding consequences of the ACA for Americans and their families casts doubt on whether voters would have voted to affirm the ACA had the law’s consequences began prior to the 2012 presidential election.

In reality, the 2014 and 2016 elections will decide whether Obamacare has really been affirmed by the American people, since by that time Obamacare will be fully implemented and its full costs and consequences known.

Given this recent history, it is clear that “settled law” is only settled when it meets the political goals of the President and Congressional Democrats; and there is little doubt that they will continue to invoke the term until held accountable for its use. For their part, Republicans should continue to focus on the serious consequences which have resulted from the ACA in order to assure the nation, and their base, that the President’s duplicity will not go unchallenged.