Monday, September 30, 2013

What, or When, Is the Law?

Suppose that the Tea Partiers in Congress prevail and government shutdown is averted by the defunding of Obamacare. And suppose it happens again in the next budget battle. Indeed, suppose Obamacare is to all extents and purposes permanently defunded. If that happens, would it remain legitimate to refer to the Affordable Care Act, duly enacted by both houses of Congress and signed into law by the President, as "the law of the land"? The budget battles will not have repealed or even amended the Act. But in what sense can it be said to have anything like the force of law?

Is this a simple instantiation of the traditional distinction between law on paper and the law in action? Or is it something more (or less) than that? Can a law that seeks to constrain or require action, but which is incapable of enforcement (for any reason), still be considered a law?

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