Taking the New Property Too Far: Frivolous Arguments Against ACA Repeal

A rare moment of constitutional accuracy from conservative pundits, and absurd legal arguments from a Democratic congresswoman, arguing that the quixotic repeal of the Affordable Care Act, if it ever materialized, would be unconstitutional for effecting a taking of entitlement rights:

The Fifth Amendment speaks specifically to denying someone their life and liberty without due process. That is what H.R. 2 does and I rise in opposition to it. And I rise in opposition because it is important that we preserve lives and we recognize that 40 million-plus are uninsured.

That’s… way wrong. Although entitlement programs do vest their recipients with a quasiproperty right in their continuance, such that the denial of an entitlement right (say, a Social Security check) without notice and a hearing does violate the Fifth Amendment’s due process clause, it’s settled law that the extinguishment of a statutory right by way of a law of general application is not a taking (subject to external limits, like the Bill of Attainder clause). The contrary conclusion resulted in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), which held the repeal of land sale act unconstitutional, only because of one of those external limits attached. Namely, the Contract Clause. Otherwise, the general rule applies:

The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted.

Fletcher, 10 U.S. (6 Cranch) at 135. We should vigilantly police pretensions to constitutionalism, on both sides of the aisle. Because Congresswoman Lee is so clearly wrong, but in an interesting way, this instance especially is worth note.

That said, the comments to the post are hilariously, and predictably, racist.


  1. Was Fletcher v. Peck really decided based on the Contracts Clause? The way I remember that case, it was more a matter of outright corruption or other invalid bases for a legislative act not impacting the validity and bindingness of the resultant law.

    Of course, I support ACA repeal because unlike the congresswoman I do not believe it is important that we preserve lives, so what do I know?

  2. […] provided by the Constitution. These include, for example, welfare rights, and other “new property” concerns, but go so far as to include various remedial vehicles that exist to discharge […]

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