As Ezra Klein points out, when the Obama administration's signature health care law first passed in March 2010 and conservatives in 26 states rose up to challenge it in the courts, most legal commentators and law professors dismissed the effort as almost certain to fail. The story of how the Right has succeeded in making the dissolution of the Affordable Care Act a mainstream and even expected outcome is crucial, regardless of how the Court actually comes down on Thursday:
Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act. The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate.
Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty. But they succeeded. In December 2009 every Senate Republican voted to call the individual mandate unconstitutional. They did this even though a number of them had their names on bills that included an individual mandate. (For more on the political history of the mandate, see this post.)
The unity among Senate Republicans reflected a unity among all the institutions associated with the Republican Party. Fox News and right-wing talk radio pushed the idea that the mandate was unconstitutional. Republican attorney generals began pushing the idea that the individual mandate was unconstitutional. Conservative think tanks — including the Heritage Foundation, which arguably brought the mandate to Washington and the Republican Party in 1989 — began releasing a steady stream of material arguing that the mandate was unconstitutional. Conservative legal scholars began developing arguments showing the individual mandate was unconstitutional. Within a matter of months, the fact that the individual mandate was unconstitutional was as much a part of Republican Party dogma as “no new taxes.”
All of this forced the controversy over the individual mandate into the mainstream media, too. After all, if one of America’s two major political parties thinks the most significant health reform since Medicare is unconstitutional, well, that’s a story! And, as most Americans are not constitutional law scholars, it made the individual mandate look like questionable policy. As Yale law professor Jack Balkin put it to me in the New Yorker, “If you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.”
With the Republican Party on-board, the media interested, and the public confused, the next step was the legal system. Conservatives filed 26 separate cases against the Affordable Care Act, ensuring that they would get a hearing in dozens of different district courts. Judge Henry Hudson, a Republican appointee who was heavily invested in a Republican consulting firm called Campaign Solutions Inc., was the first to rule against the law. Judge Roger Vinson, another Republican appointee, backed him up. In a pattern that would be repeated over and again as the law proceeded through the court system, Vinson and Hudson’s rulings got vastly more media attention than the much larger number of instance where district judges ruled for the bill or threw the challenges out of court. The result? Polls began showing a majority of Americans thought the mandate was unconstitutional.
While a ruling upholding the health law would leave it available as a bludgeon for Mitt Romney to use against the president on the campaign trail, it's hard to see the upside for the White House in having the high court -- even if it is less respected than it once was -- throw out its most significant piece of social legislation.