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Ezra Klein has written a long piece for New Yorker that looks at the power of pure partisanship in U.S. politics through the example of the rapid and categorical rejection of an individual health care mandate by the conservatives and Republicans who invented it, and embraced it until very recently. For the most part, Ezra attributes this to the very human habit of “motivated reasoning,” in which group loyalties guide how we process information about this or that development or option.
It’s all very interesting, but what I found most striking about Ezra’s article was its reminder of how very rapidly the idea spread that the individual mandate might be unconstitutional, from the cranky to the partisan and eventually, it seems, right into the Supreme Court:
On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, fourteen state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously. “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers….
Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than one-per-cent chance that the courts will invalidate the individual mandate.” Today, as the Supreme Court prepares to hand down its decision on the law, Kerr puts the chance that it will overturn the mandate—almost certainly on a party-line vote—at closer to “fifty-fifty….”
How has this happened in just two years?
First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.
I would add to this history the fact that few analysts thought there was any chance the Court would risk overturning the long line of previous decisions underlying Congress’ power to regulate interstate commerce, stretching back to the 1930s. But a couple of years of Tea Party-inspired “constitutional conservatism” encouraging a radical form of originalism clearly undermined the legitimacy of what had long been considered unassailable precedents. And so here we are.
Now perhaps the Supremes will surprise us all and uphold the mandate and banish the queasy sense I have that the bottom has dropped out and conservative radicalism, in Congress, in the think tanks, and even in the Courts, has no practical limit barring overwhelming electoral defeat. But the speed as much as the depth of the wave of amnesia—or “motivated reasoning,” if you wish—that has reversed so many prior positions on the Respectable Right will remain shocking even if it subsides on the Supreme Court steps.
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c u n d gulag on June 18, 2012 11:42 AM:
As this Overton Window keeps moving to the right, I have to keep fighting the feeling that the best thing I can do, is jump out of it.
JackD on June 18, 2012 11:44 AM:
The law professors who thought, originally, there was a 1% chance of invalidating the Affordable Healthcare Act mandate were guilty of remarkable naiveté. They thought the Supreme Court was a law court instead of a political institution. The precedents they relied on, dating from the New Deal era, were, themselves, the product of a political alignment within the court. you are right to be nervous.
SteveT on June 18, 2012 11:58 AM:
"a radical form of originalism"
This pretty much describes the kind of medical care we peasants will get if the Roberts Court overturns HeritageFoundationCare.
We will get the "traditional" medical care that the "founding fathers" enjoyed -- when we're sick our barbers will open a vein to let out the "excess" blood.
stormskies on June 18, 2012 12:00 PM:
The U.S. "Supreme" Court is nothing more, relative to the five corporate judges, than a court of stooges whose strings and pulled by the oligarchy that got them placed there in the first place.
And even the typically stupid American knows this as all recent polling suggest that around 80% of our population sees their decisions as political versus rooted in actual constitutional law.
John Robert's wet dream is to have our country be nothing more than an oligarchy, a plutocracy, that is defined by a core of fascism. He ejaculates every night fantasizing about this goal of his ........
berttheclock on June 18, 2012 12:08 PM:
So, SteveT, you mean the Koch Brothers have cornered the market on leeches?
SteveT on June 18, 2012 12:42 PM:
berttheclock asked:
So, SteveT, you mean the Koch Brothers have cornered the market on leeches?
Nope. Leeches are only for the upper middle class -- the people whose houses haven't been foreclosed on yet.
The rest of us will be bleed the "traditional" way -- the barber will open a vein with a sharp knife and let the blood drain into a bowl.
kindness on June 18, 2012 12:43 PM:
Not to mention that Justice Roberts would sell his own mother in order to deconstruct long standing social programs he personally doesn't like.
Seriously, every issue Roberts touches is judged by him with politics first, the law & precident second if that's considered at all (and I don't think it is).
Roberts has to go.
Mimikatz on June 18, 2012 12:47 PM:
The US is beginning to resemble the old Soviet Union, where the people were told they had it as good as the West and fir a long time believed it because they couldn't visit the West. People here are told we have the best and they don't or can't afford to travel so they don't know how false that is. They are prisoners of their own ignorance rather than their government, or perhaps the transnational corporate state.
Is it possible that the collapse of the health care system is their backup plan for reducing Social Security costs by reducing life expectancy?
Marvin on June 18, 2012 12:47 PM:
I heard a stock analyst on my local NPR station say that insurance company stocks were currently priced as though the law would be upheld. Can anyone here speak to this?
Bryan on June 18, 2012 1:22 PM:
It seems like the Supreme Court sees itself more as a board of directors for the United States rather than a court of law.
SecularAnimist on June 18, 2012 1:58 PM:
Ed Kilgore wrote: "... the example of the rapid and categorical rejection of an individual health care mandate by the conservatives and Republicans who invented it ..."
How about the example of the rapid and categorical embrace of an individual mandate by "sensible liberals" who nonsensically proclaimed it to be the equivalent of Social Security, Medicare, the New Deal and the Great Society all rolled into one, while simultaneously declaring every genuinely progressive alternative (the public option, Medicare expansion, single-payer) "off the table"?
boatboy_srq on June 18, 2012 2:22 PM:
@Mimikatz:
I had a conversation much like that a few years ago, when the ACA was still being debated. The other person had major reservations about the (then) bill, and didn't like the idea of national intervention into the market: "too much like Europe," she said. My reaction:
"A couple years ago, my mother and a cousin each had cataract surgery performed on both eyes. They both waited about a month after diagnosis for the first procedure, both waited about a month between eyes, both had successful outcomes and both recovered 20/20 vision or better with no side effects. The one difference: my cousin, who is covered by UK NHS, when she was done thanked her surgeon, signed some paperwork and walked out of the doctor's office; my mother, when she was done, thanked her surgeon, signed a check for $6,000.00 and walked out. Which outcome would you prefer?"
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Is it possible that the collapse of the health care system is their backup plan for reducing Social Security costs by reducing life expectancy?
That would certainly explain the Reichwing's opposition to higher tobacco taxes: more smokers means fewer folks collecting SocSec and Medicare, and collecting for a shorter period of time.
James E. Powell on June 18, 2012 2:37 PM:
@SecularAnimist
The problem with all those genuinely progressive alternatives was that none of them had corporate sponsors. Without corporate sponsors, there were no more than a handful of senators or congress-creatures who would speak in favor of those alternatives. Senators and congress-creatures represent the interests who fund their re-elections; voters are just the audience for the show. And history shows that you can sell the audience just about anything, especially if there are no competing options in the mix.
Peter C on June 18, 2012 2:45 PM:
It's not amnesia - it's disingenuousness. They "liked" 'the mandate' when it seemed an alternative to 'single payer'. Once 'single payer' was not an option, they revealed that they hated it too. They saw the mandate as a roadblock to real reform; they never really liked the roadblock, they just really hated the reform.
The pre-ACA healthcare situation was a gold-mine for insurance companies and big healthcare providers. It funneled money from the many to the few; that's the goal of Republicanism. Expecting Republicans to like any sort of reform is like pretending that Rick Scott is an honorable man. If it doesn't benefit the 1% at the expense of the rest of us, they aren't interested.
Romney only reformed the system in Massachusetts because he wanted the political benefit from solving a problem so he could get a more important position later.
gdb on June 18, 2012 3:19 PM:
SAnimist is correct.. as is Kilgore "conservative radicalism, in Congress, in the think tanks, and even in the Courts, has no practical limit barring overwhelming electoral defeat."
That defeat wll not come via BHO-- nor will advocacy of single payer, real fnancial reform, Keynesian econonomics, and other Progressive policies if BHO is re-elected.
I fear we are faced with a Hobson's choice. A rapid lurch yet further right and economic failure +crisis all attributable to Repubs under Romney --- or a continued drift to the right and economic failure +crisis occuring with BHO as Prez with Repub House and/or Senate under Repubs. Dems get the blame for that for a generation. Fairly or unfairly, Dems in 2012 have little to show for the last four years --- statements by some comparing BHO to Washington, Lincoln, FDR or LBJ notwithstanding. That's comparable to Repubs putting Reagon on Rushmore- yeh, right. Political idiocy is not confined to one party.
Bloix on June 18, 2012 3:22 PM:
Scalia has now said publicly that he intends to find that all New Deal and Great Society social legislation is unconstitutional.
http://tpmdc.talkingpointsmemo.com/2012/06/antonin-scalia-book-health-care-wickard-filburn-raich-constitution-commerce-clause.php?ref=fpnewsfeed
Cybrguy on June 18, 2012 4:14 PM:
"That would certainly explain the Reichwing's opposition to higher tobacco taxes: more smokers means fewer folks collecting SocSec and Medicare, and collecting for a shorter period of time."
While this may even be true, it neglects the point that the last 10 years of their life will cost us $1M for each of their medical care. Not much savings, one would think...
smartalek on June 18, 2012 7:12 PM:
I had thought for a while that the Supremes would uphold the ACA purely because one of the major goals of the Publicans for over a generation has been the privatization of Social Security, and the mandate that hundreds of millions of Americans turn over their retirement money to Goldman (or whichever banking house(s) will have their people in place when the deals are done and the bills written, signed, and implemented).
Surely they would do nothing to endanger, let alone invalidate, the core concept that the Fed Gov't has the power to mandate the purchase of privately-provided services!
But, as always, the Publicans will no doubt manage to exceed even my worst expectations for their criminality.
Because, as we all know all too well, what's forbidden to any Democrat (let alone a treasonous communist and Muslim 5th-columnist) is Okay If You're A Republican!
Of course they'll have no problem calling the insurance-purchase mandate "unconstitutional," and then, as soon as they have the White House and at least one House of the Congress, forcing us to hand over our SS/FICA $ to their corporate owners (at a far lower return than SS would have provided us, and with a modest management fee, of couse) -- because it will promote Freedom and Personal Responsibility!
How foolish of me ever to have thought otherwise.
Doug on June 18, 2012 8:53 PM:
Still don't get it, do you gdb?
This is OUR country, if WE want "progressive" policies enacted, WE do everything WE possibly can to elect enough Democrats, in this case, so that a there's a large enough progressive caucus in Congress to initiate legislation on those policies. Of course, that also means that you, and several other posters, would have to recognize that you few are NOT the majority in the Democratic Party. An analogy about parasites and hosts might apply, but I'm not certain it would be wise to invoke it.
A President, any President, can only work with the material WE provide them with; in other words, those we elect to the House and Senate. It's amazing how some people, who consider themselves well-informed, don't seem to realize that.
To pass "progressive" legislation requires, not a majority of progressive legislators, but it DOES require a majority. One needs only to look at the voting records of ALL those who voted for, say, the CRA to see that. The same applies to those who voted for progressive legislation passed during FDR's administration/s. Or Theodore's, for that matter.
Many people, of course, find it simpler, and certainly easier, to blame a President for ALL the legislative "failures" that occur, but that doesn't relieve those who are also responsible for THEIR share in those failures.
US. Perhaps not you or I, but certainly "We, the People" and, whether you like or not, that's the system we live under. A democracy based on majority rule. If you want progressive legislation enacted, then it IS your job, and mine, to do our utmost to see that people who will initiate, support and vote for such legislation are elected.
If you wish to ensure "progressive" legislation is enacted, then I'd urge you to approach the legislation passed in 2009-10 in a more positive manner. ACA may not solve all this country's HC problems, but, and this is important, whether that legislation is ruled un-Consitutional or not, the ACA HAS established the idea that it is the duty of the Federal government to see that ALL citizens have access to HC they can afford. I also recommend the same approach to other Acts of Congress that may not meet your "standards".
If you truly wish to see progressive policies enacted, then YOU need to be able to convince those who are either against those policies or are undetermined about them. We here are already in favor of such legislation, you don't need to convince us! I can guarantee you, however, that telling such people how horrible the ACA is will NOT move those people towards single-payer. Or ANY Federal involvement the extension of HC.
I've said it before: the root of the word "progressive" is "progress" and that's what happened during 2009-10. All your caterwauling won't change it and may very well endanger any chance of reaching the goals you SAY you wish to get to.
Before you accuse me of telling you to STFU, I'll remind you to read what I've written here. You have provided NO evidence for your assertions. You have provided NO proof of your claims against the present administration or President Obama.
Undoubtedly you will offer the legislation produced during 2009-10 and its' failure to meet YOUR standards of "progressivism" as "proof". To that I will respond with - where were the votes? Show me that some part or piece of legislation DIDN'T pass because President Obama didn't "twist" enough arms or promise enough pork.
And I want names.