How Republicans made it possible for the Supreme Court to rule against the mandate

June 25, 2012

It wasn't easy for Barack Obama to persuade David Axelrod to take him on as a client. It took years, actually. But there was a reason Obama wanted Axelord to be the one to run his campaigns. Axelrod knew how to get black candidates elected by white voters. In fact, he had a whole theory about it.

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In a 2008 profile of Axelrod in the New Republic, Jason Zengerle quoted Ken Snyder, a Democratic consultant and Axelrod protege, on his mentor's approach. "David felt there almost had to be a permission structure set up for certain white voters to consider a black candidate." The "permission structure" relied heavily on "third-party authentication," which is to say, endorsements from respected figures or institutions that the targeted voters admired.

If you think back to the 2008 campaign, you can see Axelrod slowly building this permission structure around Obama. Right before Super Tuesday, Axelrod rolled out the endorsements of Ted and Caroline Kennedy. Right before the election, he rolled out Colin Powell. The timing and nature of the endorsements were meant to make an African-American candidate with an international upbringing and the name Barack Hussein Obama into someone that Ohio steelworkers could feel comfortable voting for. If Ted Kennedy and Colin Powell can back this guy, so can you.

But permission structures aren't just for elections. 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.

The effort had setbacks, too. On the appellate level, two of the brightest stars in the conservative legal firmament ruled in the law's favor. Orin Kerr, a law professor at George Washington University and a former clerk for Justice Anthony Kennedy, told me, " the two top choices for Supreme Court picks on the Republican side are probably Brett Kavanaugh and Jeff Sutton. Sutton voted to uphold the mandate on the merits and Kavanaugh voted to say it was not justiciable." Judge Sutton, by the way, is a former clerk for Justice Antonin Scalia.

But those setbacks were nothing compared to the luck Republicans had during the oral arguments before the Supreme Court. Paul Clement, the talented lawyer prosecuting the case against the Affordable Care Act, gave what most everyone agreed was the performance of his career. Don Verrilli, the solicitor general of the United States, gave what most everyone agreed was one of the worst performances of his. He began by choking on water and seemed to never quite recover his composure. "He was passive. He was stumbling. He was nervous," CNN legal analyst Jeffrey Toobin told POLITICO. "I was just shocked.”

For all the Republican Party had done to make the mandate's constitutionality a live issue, the oral arguments gave their cause a credibility that strategic positioning couldn't buy. The two arguments had met in front of the Supreme Court and the argument against the mandate's constitutionality had clearly won. Everything up till that point could have been written off as conservatives convincing conservatives of something conservatives already wanted to believe. But on that day, the argument against the individual mandate met the argument for the individual mandate, and the argument against the individual mandate won -- even in the eyes of the mandate's supporters.

After that, confidence that the mandate would survive the Court collapsed. A poll of former Supreme Court clerks taken before the oral arguments found only 35 percent thought the Court would overturn the mandate. After the oral arguments, that rocketed up to 57 percent. A poll of top constitutional law scholars found that 19 of 21 thought the mandate was constitutional, but only eight were confident the Supreme Court would uphold it. InTrade, a political betting market, puts a 67 percent chance on the mandate being overturned.

The collapse did not come because anyone changed their mind about the underlying constitutionality of the individual mandate. Polls, both of experts and the public, have been steady on that score. Rather, what the conservative movement had done -- with a big assist from Verrilli -- was build a permission structure that would permit the Republican-appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the Commerce Clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lockstep with the entire Republican Party, many polls,  a number of judges, the impression the public has gotten from the media coverage, and the outcome of the oral arguments.

And that's what's changed from two years ago. When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than one-per-cent chance that the courts will invalidate the individual mandate," Kerr said at the time. Today, it's entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution's legitimacy, are free to rule in whichever direction they want. We'll find out what direction that is on Thursday.

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Sarah Kliff · June 25, 2012