Day 13: Obama Could Have Phrased This Better

As Congress continues to drag its feet, ignoring the easy solution, I still can’t help but blame Republicans for the shutdown — since they planned it in advance.

However, one phrase from the left has been bugging me a bit during this nationally embarrassing debacle. That’s the notion of “settled law”.

What President Barack Obama and other Democrats should have insisted is that Obamacare has been debated in the past, and will continue to be debated in the future, but that it was a poor excuse to not pass the mostly unrelated appropriations bill. The Affordable Care Act went into effect regardless of the government shutdown. Whether you like the ACA or not, it was mostly funded from other sources, much of the money had already been distributed and spent, and so on.

Instead, Obama focused on saying that the ACA is “settled law”.

I first heard this term back in 2009 or so, when Sonia Sotomayor was being confirmed as the next Supreme Court justice. She kept insisting, as an answer to all questions about her opinions, that she would abide by the precedents of the court. “All precedent of the Supreme Court I consider settled law”, she said in answer to a question from Senator Orrin Hatch.

Obama used similar language on Oct. 1:

“The Affordable Care Act is a law that passed the House, that passed the Senate, the Supreme Court ruled constitutional. It was a central issue in last year’s election. It is settled, and it is here to stay.

And because of its funding sources, it’s not impacted by a government shutdown.”

The President is saying that any law which passes both houses, gets signed by the President, survives a Supreme Court ruling, and then helps reelect that same President is “settled”. Only the last line was relevant to the current shutdown, and it should have been all he said.

In argument against the President’s reasoning on Oct. 1, 2013, I quote from a well-received 2006 book “The Audacity of Hope”, written by a man similar to President Obama, with the same education and background, but younger and not yet President. His name was Senator Barack Obama:

“…No law is ever final, no battle truly finished; there is always the opportunity to strengthen or weaken what appears to be done, to water down a regulation or block its implementation, to contract an agency’s powers with a cut in its budget, or to seize control of an issue where a vacuum has been left.

Partly, it’s the nature of the law itself. Much of the time, the law is settled and plain. But life turns up new problems, and lawyers, officials, and citizens debate the meaning of terms that seemed clear years or even months before.”

(I’ve added the emphasis above.)

At the time, Obama was a member of the minority party. The Democrats weren’t in charge of the Senate or the House, or the White House. They were mostly helpless complainers, hoping for something different in the next elections. Fortunately for them, they got what they wanted in 2008 — an almost complete reversal of the balance of power.

But now that they’re in power, they seem to have moved their freight cars onto the same tracks that the Republicans were using a few years earlier.

Just one page after the above quote, Senator Obama went on:

“…What troubled me was the process — or lack of process — by which the White House and its congressional allies disposed of opposing views; the sense that the rules of governing no longer applied, and that there were no fixed meanings or standards to which we could appeal…

The irony, of course, was that such disregard of the rules and the manipulation of language to achieve a particular outcome were precisely what conservatives had long accused liberals of doing.”

It’s like there’s a one-way mirror surrounding whoever’s in power at the moment. We can see in, but they can’t see out. Once you’re the majority party, it seems impossible to look back at where you were just seven years ago and put yourself in the other party’s shoes. But a few years in the future, when you’re back in the minority, it’ll be the other way around again.

Earlier in the same book, Senator Obama talked about “the simple idea that we have a stake in one another, and that what binds us together is greater than what drives us apart” and “our seeming inability to build a working consensus to tackle any big problem”. These are the very thoughts that cross my mind as I hear the “settled law” argument regarding the Affordable Care Act.

Simply using the phrase “settled law” is driving apart the parties and causing an inability to build a working consensus. Not that I think Republicans would give in a little and compromise on the ACA somehow — they’ve made it clear that they (1) won’t budge on it, (2) want it repealed entirely, and (3) don’t want to replace it with anything else.

But Obama could be the bigger man by making it clear he’s willing to talk.

  1. Simply using the phrase “settled law” is driving apart the parties

    Failing to use conciliatory terms to appease a disgruntled faction is not the same as using enflaming rhetoric.

    Calling it ‘settled law’ is a lawyer’s way of saying that it can’t be simply removed because you don’t like it. It will, not to be ironic here, take an Act of Congress to do anything about it.

    They all know that no law is truly settled. Roe v. Wade is still playing out in states even though it’s settled law. I think it’s just a very gentle way of telling them to fight the fight in the open and to quit sneaking anti-ACA provisions in every which way they can to undermine it.

    • Wil C. Fry says:

      “Failing to use conciliatory terms to appease a disgruntled faction is not the same as using enflaming (sic) rhetoric.”

      While this is true, and while it’s also true that Republicans are in this case actually guilty of using inflaming rhetoric (“one of the most insidious laws ever devised”), it still doesn’t help. In a sense, it’s providing a straw man for the other side to attack — and they *have* been attacking the “settled law” idea for days now, since it’s not true.

      My point is that Obama (and subsequently, other Democrats) could have made it easier on themselves by not using the phrase

      “Calling it ‘settled law’ is a lawyer’s way of saying…”

      In legalese — as far as I can determine — “settled law” is used only in a narrow sense that isn’t applicable here: that appellate courts should follow precedent of higher courts. I don’t think Obama was using it in that narrow sense, but in the broader, non-legalese sense. Which is why I (and the younger Obama I quoted) disagree with the President.

      Most people seem to understand the term thusly:

      “… some cases have been on the books for long enough without any substantial challenge rising up against them as to be settled, however controversial they were at the time.”

      Further, different people in power have used the term differently. Some use it for cases that are clearly still in debate, like Roe v. Wade, which a huge minority of Americans still want to see overturned.

      As for your last sentence, I completely agree, though I still think he’s smart enough to have thought of different phrasing. ;-)

  2. mamaolive says:

    Reminds me of the following quote:

    it had never occurred to me, as a general moral principle, that two educated men were for ever forbidden to talk sense about a particular topic, because a lot of other people had already voted on it. What is the matter with that attitude is the loss of the freedom of the mind. There can be no liberty of thought unless it is ready to unsettle what has recently been settled, as well as what has long been settled.

    Chesterton, G. K. (Gilbert Keith) (2009-10-04). What I Saw in America

    • Wil C. Fry says:


      I’m not sure that’s completely relevant to this case (since Obama wasn’t suggesting they couldn’t talk about it), but it IS a sore subject with me. It bugs me all the time when someone says you shouldn’t even talk about a particular subject.

      In my experience, both the left and the right regularly set up barricades around particular subjects that they just don’t want anyone discussing or thinking about in particular ways.

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