That is the argument being made, it is like saying in 1954, Segregation is unconstitutional, but to end segregation would be disruptive, so we are NOT ending segregation...
The Supreme Court has made ruling as to the constitutionality of laws, that were disruptive of on-going situation in the US. That such a ruling would be disruptive has NEVER been grounds to hold a unconstitutional law constitutional. When the court ruled the death penalty as practice was unconstitutional in the 1970s, it did not also say that ruling the death penalty unconstitutional would have been to disruptive, so we are going to leave the states carry out the unconstitutional death penalties. When the Court ruled it was unconstitutional for police to use illegally obtain evidence, it did not rule that such a ruling was so disruptive, that the court would make convictions using such evidence as constitutional. When the court ruled it was unconstitutional to perform prays in Public Schools, it did not rule such prays were also constitutional for it would be disruptive of how schools are operated.
Going back to desegregation, the Court in 1954 did say desegregation should go on at a "Deliberate speed" given the impact the ruling had, but still ruled Segregation unconstitutional.
I am ignoring the constitutionality of Heath Care Reform in the above comments, for the simple reason the argument here is NOT that health care is constitutional or unconstitutional, but if the law is unconstitutional the court should still rule it constitutional for it would be so disruptive for the court to rule the law unconstitutional. i.e. as if in 1954 the Court had found segregation unconstitutional, but also ruled that making desegregation unconstitutional would have been to disruptive so segregation was constitutional
This is the WRONG argument to make, the court will NEVER give it much weight for the simple reason it is saying the Constitution is meaningless if the Government says to follow the Constitution is to disruptive. Both the liberal wing and the Conservative wing of the Court will refuse to uphold such a position (Through some of the reactionaries on the court may agree with the argument, i.e. if the Government wants something, even if it is unconstitutional, the government should get it if the government say NOT to give it the power would be to disruptive.
Bushes Appointees may actually like such a ruling, it permits the court to make things constitutional even if it clearly violates the Constitution (This is a position popular with such reactionaries, upholding laws that the right wants, even if unconstitutional).
On the other hand, most liberals and conservatives will see the danger in such a position and hopefully attack it, such a ruling makes the whole constitution nothing more then a piece of paper. This is just a bad argument to make.
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