Three years ago, virtually no one knowledgeable in US constitutional law seriously doubted the constitutionality of the individual mandate, the key financial provision of the Affordable Care Act. It was not even clear that a challenge would reach the Supreme Court.
In April 2011, Northwestern University law professor Andrew Koppelman published a representative analysis in the Yale Law Journal Online, with the subtitle “The Obvious Constitutionality of Health Care Reform“. It wasn’t just liberal law school professors who felt that way. Two highly respected conservative appeals court judges, including Laurence Silberman, who sits on the Washington, DC Circuit Court of Appeals – the court considered to be just below the Supreme Court in influence and prestige – found the law constitutional in cases that came before them.
A major conservative talking point against the individual mandate was that it regulated people who weren’t actively involved in commerce – the uninsured. But talking points and sound legal arguments are two different animals. Silberman dismissed this talking point from two different directions, first denying that “inactive” label makes sense: “Because virtually everyone will, at some point, need health services, no one is truly inactive, and the health services market is inextricably intertwined with health insurance”. Second, Silberman denied that it even mattered, noting that neither the text of the Constitution nor the history of Supreme Court decisions favoured the active/inactive distinction. So far as the congressional power “To regulate Commerce… among the several States” was concerned, he wrote, “to regulate” can “mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market”.
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So far as the Court was concerned, he wrote, “No Supreme Court case has ever held or implied that Congress’ Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”
In short, Silberman made it perfectly clear just how flimsy – if not wacky – the case against the individual mandate truly was, even in the eyes of a conservative legal icon.
This helps explain three different interrelated things: First, why observers were so shocked by the vehement attacks on the law from conservative Supreme Court justices during oral arguments on March 27. Second, why there was further surprise that so-called “moderate” conservative Anthony Kennedy joined the three hardline associate justices in a sweeping rejection of the entire law, based on arguments that Koppelman characterised as sloppy and extremist, “newly minted constitutional doctrines that make little internal sense and appear explicable only by a determination to eradicate every bit of a law that they just don’t like”.
And third, why Chief Justice Roberts’ decision largely upholding the law – based on Congress’ taxing authority, not its interstate commerce authority – has caused so much confusion that no one seems to know what he’s up to or why. Indeed, both textual analysis by University of Colorado law professor Paul Campos and in-depth reporting by CBS news indicates that Roberts initially planned to strike down the law before changing his mind.
It was not that long ago that the individual mandate – the key financial provision at the heart of the controversy – was a touchstone conservative Republican idea, born of the conservative Heritage Foundation, conceived in opposition to Clinton’s employer mandate, and implemented by Republican presidential hopeful Mitt Romney in Massachusetts in 2006. But all that changed as soon as Barack Obama and the Democrats embraced it – confounding their assumption that the way to gain broad bipartisan support was to adopt some Republican ideas.
This head-spinning change in conservative Republican opinion – along with utter denial of past history – is hardly an isolated phenomena. In fact, the entire political establishment – including the so-called “liberal media” – has amazingly come to regard this sort of thing as perfectly normal – though only on the Republican side. Indeed, to call this sort of crazy behaviour what it is – crazy – is itself regarded as crazy, something normal people just don’t do.
“[I]n three years’ time, the argument that the mandate violates the Constitution has moved from crazy to plausible.“
– Jack Balkin
Think I’m overstating things? Why else do settled scientific facts like evolution and global warming remain politically controversial – along with public policies like birth control and sex education – even though there’s no empirical foundation for political opposition in any of these cases? Or what about the claim that being gay is a choice, or that free markets work spectacularly, and had nothing to do with 2008 financial crises that touched off the Great Recession?
On issue after issue, conservative politics depends on the denial of basic empirical facts, and rather than paying a price for this in the empirically oriented media, they are richly rewarded by having their anti-empirical reframing of issues accepted as serious, if not dominant and determinative. Last summer, this sort of craziness went so far that congressional Republicans almost caused the United States to stop paying its debts – in the name of “fiscal responsibility”!
It’s no accident. Conservatives have been focused on securing such dominance for nearly 40 years, building the political infrastructure to wholesale their ideological framing to the public, regardless of the facts may be. That’s why the health care decision was such a nail-biter, as Yale law professor Jack Balkin explained in advance on the Atlantic website:
“[I]n three years’ time, the argument that the mandate violates the Constitution has moved from crazy to plausible,” Balkin wrote, from “off-the-wall” to “on-the-wall”. He elaborated, “Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law.”
As Balkin noted, it’s not at all uncommon for off-the-wall arguments to make this transition – it was once off-the-wall to argue that blacks were equal to whites, or that women were equal to men, for example, and should be protected under law. But it took generations for those arguments to change their status, and they were implicated in the broadest and most profound changes in social relations our nation has ever experienced. In the case of the individual mandate and the Affordable Care Act, it took just three years for a complete turn-around – one almost entirely driven by the very same conservative establishment that originally came up with the individual mandate in the first place.
How did this happen with such lightning speed? Balkin pointed to a number of different factors working in tandem, but they all hinge on a crucial two-fold point: first, that law “is grounded in judgments by legal professionals about what is reasonable” and that, in turn, “what people think is reasonable, depends in part on what they think that other people think”. In short: “Arguments move from off-the-wall to on-the-wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument.”
The actors involved in bringing about the rapid transformation of anti-mandate arguments included conservative intellectuals (“including lawyers and legal academics”), social movements (“the Tea Party”), and establishment politicians/the party system (“Thus, the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media. The unconstitutionality of the mandate quickly became virtually the official position of the Republican Party.”)
Balkin is merely trying to describe the broad outlines of a process, but even so he hints at a much wider array of forces involved – as when he notes that “intellectuals are often rewarded professionally for making arguments that are deliberately controversial and counterintuitive” (a process that works rather differently in academia than within right-wing think-tanks), and that they are “often connected to” social movements, or when he calls attention to the relationship between parties, politicians and the media.
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What’s more, there’s a tremendous cohesion binding the Republican Party which is not just ideological, but rhetorical, even performative – they act increasingly like one choreographed whole – which is why it can be so potentially deadly to suddenly be out of step.
The political consensus-shaping process that Balkin describes stands in sharp contrast to the world of science, where evolution and global warming remain stronger than ever despite similarly cohesive ideological attacks. This is not because scientific consensus doesn’t change (it does) or because similar reputational and institutional factors don’t play a role (they do). Rather, it’s because there are two fundamentally different sorts of reason involved, as author Chris Mooney explained in his most recent book, The Republican Brain. One sort of reason aims at understanding the world, the other aims at persuading others – and given the sort of social animal that humans are, it’s hardly surprising that a powerful argument can be made that this second sort of reason is more fundamental, more natural, more politically effective, despite being empirically unreliable. And this is the sort of reason that conservatives (and Republicans) excel at.
Mooney added, in an interview for this article, that if anything has hastened the transition of the anti-mandate legal argument from crazy to seemingly uncrazy – at least on the right – it is conservatives’ all-out war on President Obama. “Because they have defined him so sharply as an enemy, and so formed ranks as allies crusading against this titan of socialism, any argument that helps the cause binds the group,” Mooney says. “And so of course it comes to seem plausible, because it is a core part of their emotional reality.”
It’s perfectly consistent that a wholly discredited belief in Obama’s foreign birth also binds this group together as well. Nothing could more clearly distinguish between the two types of reason than an empirically false claim that the president is not an American – a claim that’s believed more widely by conservatives and Republicans each time it’s conclusively disproven. The belief that his signature legislative achievement is un-constitutional – i.e. “un-American” – is just the other side of the same coin.
What Balkin describes is reminiscent of what Harvard law professor Mark Tushnet called “Constitutional Hardball” back in 2003:
“This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behaviour by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible – though sometimes only barely so – by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order.”
Balkin’s account is both more radical and more realistic than Tushnet’s, because it does not assume “arguments and behaviour” “that are defensible” (even just “barely so”) “by standard constitutional doctrine”. To the contrary, Balkin draws our attention to how the very meaning of “standard constitutional doctrine” can change in the twinkling of an eye, if the right combination of interested political actors are brought together.
Tushnet’s view can’t quite encompass the possibility of complete reinvention of the law, but that’s exactly what we’ve seen on the conservative side of the spectrum these last three years. And if Romney is elected in November, we’ll be seeing even more of it for decades and decades to come.
Paul Rosenberg is the senior editor of Random Lengths News, a bi-weekly alternative community newspaper.