Jonathan Cohn

Obamacare on Trial: What the Right Already Won

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Nobody knows what the Supreme Court will say about the Affordable Care Act, or exactly what a decision striking down part of the law would mean for the health care system. But one thing is clear already: Just by getting this case to the high court, which resumes hearings on Tuesday, the far right wing has already won something.

As recently as three years ago, the idea of an individual mandate (the requirement that most people get insurance or pay a penalty) was largely uncontroversial, not only within the Democratic Party but within the Republican Party as well. As late as the spring of 2009, prominent Republican lawmakers like Charles Grassley, ranking minority member of the Senate Finance Committee, publicly embraced the idea of the mandate as part of health care reform. If he or any other leaders of the GOP thought the mandate was an unholy violation of liberty, they kept it to themselves.

The mandate also has a lengthy, bipartisan resume: Among its original architects were researchers at the Heritage Foundation. Among its early supporters were the three top Republicans running for president: then-Senator Rick Santorum of Pennsylvania, then-Speaker Newt Gingrich and then-Governor Mitt Romney of Massachusetts. Romney, of course, enthusiastically promoted the mandate as a way of enforcing individual responsibilitybecause, as he liked to say, people who can pay for their health care share shouldn’t pass their bills onto others.

To be sure, not everybody within the Republican Party (or, for that matter, within the Democratic Party) liked the mandate. Libertarians, as far as I can tell, have always opposed it. They make a serious and intellectually honest case, which is part of their broader argument that the government should do far less than it does today. It's just not an argument most mainstream conservatives and Republicans endorseduntil the last few years. 

And that's true of the judiciary, as well. The libertarian legal case makes perfect senseif you’re reading the Constitution as the justices did in 1930 or, with respect to the Necessary and Proper Clause, as perhaps some justices did before Chief Justice John Marshall handed down his decision in McCollough v. Maryland. Until recently, even most conservatives were unwilling to revisit those precedents as the plaintiffs in these lawsuits now urge implicitly, if not explicitly. That’s why, in a pair of stinging rebukes to the libertarians, well-respected conservative judges Laurence Silberman and Jeffrey Sutton, found the constitutionality of the individual mandate to be an easy casejust as more liberal commentators, such as Slate’s Dahlia Lithwick, have suggested.

But here we are, taking these arguments very seriouslyon the campaign trail and, this week, in the courts. The politicians' transformation is no great mystery. They’re opportunists. The mandate is health care reform’s least popular element. By focusing on it, rather than more popular elements of the law, Republicans have a useful tool for attacking President Obamapotentially undermining his most significant domestic policy achievement and ending his tenure in office at one term.

If seizing on the mandate means conjuring up an outrage these politicians don’t really feel, or contradicting things they had said earlier, they're willing to do it. And if it plays to a Republican base that has worked itself into a frenzy over the size of governmentexcept for Medicare and Social Security, of courseso much the better.

But the transformation of the judiciary is a bit more complex. It also reflects a change in who sits on the bench. Republicans have held the presidency for 20 of the last 32 years. They have used that time to populate the federal bench with true conservatives, at least some of whom really do subscribe to these libertarian notions of governmentand at least a few whom, certainly, are as politically minded as the Republicans running for president. “The precedents supporting the constitutionality of ACA haven’t changed,” Jeffrey Toobin writes in the New Yorker, “but the federal judiciary, including the Supreme Court, has.”

It’s a reminder, Toobin says, of one reason that presidential elections matter: Over time, presidents can and will remake the judiciary. In the best case scenario for liberals, President Obama will win another term and, finally, break the congressional logjam that’s stalled his own efforts to appoint judges. But that will take time. The moment for health care reform, and perhaps many other causes, is now.

follow me on twitter @CitizenCohn 

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