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Obama Changes “Settled Law” to Suit His Political Agenda


-The article was originally published at The Washington Examiner and was co-authored with Kavon W. Nikrad.

During the lead-up to the partial government shutdown, President Obama and Senate Majority Leader Harry Reid frequently referred to the Affordable Care Act as “settled law.”

Their implicit argument was that, as the ACA was passed by Congress, survived a Supreme Court challenge and was seemingly affirmed by voters in a national election, Republicans should just accept it as “the law of the land.”

But in an op-ed published by PJMedia, we noted that the same politicians who make the “settled law” claim ignore how Congress and the president have changed the ACA at least 20 times, sometimes legislatively, often dictatorially and perhaps even illegally.

Only days before our piece was published,Health and Human Services Secretary Kathleen Sebelius delayed the individual mandate for those who are seeing cancellations of existing plans. Millions of plans are being cancelled by insurers because of various regulations, laws, and mandates in Obamacare. Clearly, the ACA is only “settled law” when it pleases the relevant politicians.

However, the “settled law” claim does not just fail on hypocrisy and political opportunism within Obamacare. It also ignores how the president has changed many traditional, long-standing policies almost at a whim, including those with wide bipartisan support. Here are a few examples:

  • Obama has unilaterally granted amnesty to selected categories of undocumented immigrants, an action which is at odds with nearly 30 years of immigration policy.
  • The War Powers Act was crafted in bipartisan fashion 40 years ago, yet Obama violated it when he ordered military action in Libya. Former Ohio Democratic Rep. Dennis Kucinich, a vocal anti-war advocate, went so far as to declare that Obama was worse than President George W. Bush on unconstitutional and unilateral military intervention.
  • Obama chose to not enforce federal law earlier this year in Colorado and Washington when those states legalized marijuana use. And despite one’s opinion on the legalization of marijuana, the possession and use of marijuana has been proscribed by federal law for nearly 80 years.
  • In 2008, the Supreme Court affirmed in District of Columbia v. Heller the Second Amendment’s protection of an individual’s right to lawfully possess firearms. Yet Obama has signed more than 20 executive orders this year seeking to limit Second Amendment rights in efforts to undercut this decision.
  • Obama chose not to defend the Defense of Marriage Act even though DOMA was passed with bipartisan support, had been “law of the land” for two decades, and was signed by President Bill Clinton.
  • The Hyde Amendment, which limits federal funding for domestic abortions to cases of rape, incest and life of the mother, has been renewed annually with wide bipartisan support since 1976. Obamacare violates this legal tradition by providing subsidies for plans that cover abortions, including abortifacient pills.

Finally, the “settled law” argument ignores the times in our nation’s history when longstanding law desperately needed changing. Such laws for decades allowed intolerable conditions and egregious civil rights violations against many Americans. Among these laws were those that enabled racial segregation, slavery and “separate but equal” schools and public accommodations. No one today could argue that these laws were legitimate; regardless of the manner in which they were passed or for how long they had stood.

So what is settled law? As Obama’s actions demonstrate, the settled law argument is merely a rhetorical ploy invoked for the purposes of public manipulation and political expediency. As such, Republicans should continue in their efforts to limit the deleterious impact of the ACA, and the mainstream media should do a better job of holding the president accountable for his own transgressions of “settled law.”