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From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream—A Commentary by Jack Balkin

The following commentary was posted on The Atlantic.com on June 4, 2012.

From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream
By Jack Balkin

This month the Supreme Court will decide whether to strike down parts of the Affordable Care Act. Three years ago, the idea that the Act's mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy. And the very last people, one might think, who would proclaim it unconstitutional would be Republican politicians. After all, the individual mandate was developed in conservative think-tanks and touted by Republican politicians as a free market-based alternative to more liberal proposals like the Clinton health plan. Even after all of the controversy, it is still more likely than not that the Supreme Court will uphold the mandate. Yet in three years' time, the argument that the mandate violates the Constitution has moved from crazy to plausible, and -- following this March's Supreme Court oral arguments -- many now hope (or fear) that it might actually become the law of the land.

How did we get here? The changing perception of the individual mandate is an example of one of the most important features of American constitutional law -- the movement of constitutional claims from "off the wall" to "on the wall." 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, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can't believe what hit them.

American history is full of examples, ranging from the idea that governments can't engage in sex discrimination to the view that the Second Amendment protects an individual right of self-defense to the notion that states can't make homosexual sodomy illegal. In fact, this month the First Circuit Court of Appeals struck down section 3 of the Defense of Marriage Act, a bill supported by politicians from both parties only 16 years ago and signed into law by President Bill Clinton. The First Circuit's decision is only one sign among many that a federal constitutional right of gays to marry is no longer unthinkable.

But how do constitutional arguments like the challenge to the individual mandate move from off the wall to on the wall? Law, and especially constitutional law, is grounded in judgments by legal professionals about what is reasonable: these judgments include what legal professionals think is obviously correct, clearly wrong, or is a matter of dispute on which reasonable minds can disagree. But what people think is reasonable depends in part on what they think that other people think. 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. Moreover, it matters greatly who vouches for the argument -- whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion. The Obama Justice Department has now officially taken the view that discrimination against homosexuals should be subjected to close judicial scrutiny, and the president has recently declared himself in favor of legalizing same-sex marriages. Together these announcements give enormous momentum to the decades-long struggle for constitutional rights for gays and lesbians.

To understand the transformation in attitudes about the constitutional challenge to the individual mandate, we have to look at several different groups and institutions: intellectuals, social movements, political parties, media, and the courts.

Conservative intellectuals -- including lawyers and legal academics -- were quite important in formulating the initial arguments against the mandate, and refining them along the way. But intellectuals by themselves could not move the arguments from off the wall to on the wall. Intellectuals make off-the-wall arguments all the time, and most of them stay that way. (In fact, intellectuals are often rewarded professionally for making arguments that are deliberately controversial and counterintuitive.)

Social movements (which intellectuals are often connected to) are a more important driver of change; in fact, they have been one of the most important institutions for moving constitutional arguments from off the wall to on the wall. Many of the biggest changes in American constitutional law have resulted from long term efforts by successful social movements like the labor movement, the civil rights movement, the women's movement and the gay rights movement. Thus it matters that the constitutional attack on the mandate was quickly taken up by members of a new political movement, the Tea Party.

Social movements, however, usually take a long time to win over lots of people. The gay rights movement, for example, is usually thought to begin with the Stonewall riots in 1969, and it took decades to convince lawyers and judges that gays deserved any constitutional rights at all. This slow pace makes sense if you think about how most social movements work: they try to change culture from the bottom up, and changing culture takes time. But the constitutional challenge to the individual mandate became plausible much more quickly than constitutional arguments for gay rights, which suggests that the Tea Party's support cannot be the whole story.

What really accelerates the movement of constitutional arguments from off the wall to on the wall is neither intellectuals nor social movements. It is the party system, which usually only gets involved after intellectuals and social movements have laid the groundwork. When establishment politicians -- who, after all, have to stand for election and don't want to be thought out-of-touch to their constituents -- get behind a constitutional argument, they often help move it forward quickly. Prominent politicians can bring to bear all of the political influence and institutional heft that their public support entails. (Think of Obama's endorsement of gay rights as an example.) And when an entire political party gets behind a constitutional argument, almost by definition the position has become mainstream, even if it doesn't ultimately succeed before the courts. Finally, the party system matters to the success of constitutional claims in the long run because national politicians -- especially presidents -- try to stock the courts with judges who share their values. These judges are more likely to be sympathetic to the constitutional claims that politicians support.

Perhaps the best example of the power that political parties have to move constitutional arguments from off the wall to on the wall in a relatively brief period of time is Bush v. Gore. No social movement had been championing the arguments the Bush campaign lawyers made in the federal courts, and only a few weeks before the case made it to the Supreme Court, most election law specialists thought the arguments close to frivolous. But the entire Republican Party got behind them, and we all know the result.

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. As Republicans sought to prevent passage of the Affordable Care Act, Republican politicians who had previously supported an individual mandate now denounced it as the most egregious assault on the Constitution in recent memory, and the measure was enacted without a single Republican vote in either House. After the bill passed, over 20 Republican governors and state attorneys general joined together to challenge the mandate in federal court. It also didn't hurt that constitutional opposition to the mandate was good politics; it attracted the energy of Tea Party voters, which in turn helped the Republicans regain control of the House of Representatives in the 2010 elections.

Strong political party support also affects the treatment of constitutional claims by the media, and media organizations also play important roles in moving constitutional arguments from off the wall to on the wall. Once a major political party insists that a controversial piece of legislation is unconstitutional, the media is likely to take the argument seriously -- especially media with strong links to the party and its political fortunes. Conservative media, including Fox News, the editorial page of the Wall Street Journal, conservative talk radio, and the right wing of the blogosphere, helped publicize and lend additional authority to the arguments against the mandate. Meanwhile, conservative lawyers and intellectuals continuously restated and refined their arguments in the blogosphere, influencing other legal professionals and ordinary citizens in ways that were not possible before the Internet.

Mainstream media unaffiliated with the Republican Party were required by conventions of journalistic objectivity to cover the debate, and routinely quote opinions from both sides. Continuous reporting on the challenge as a viable controversy helped ensure that the unconstitutionality of the mandate would be widely viewed as an issue on which reasonable minds could disagree.

All of this would have been for naught, however, without recognition by the federal courts. Mandate opponents, like civil rights and other advocacy groups before them, began a litigation campaign, seeking to bring their arguments before the federal district judges most likely to be sympathetic to their cause. Given the ideological distribution of the district courts, it was always possible that there would be one or two very conservative Republican appointees somewhere around the country who might strike the mandate down. But the real question was whether any of the federal circuit courts of appeals would agree. If all of the circuit courts upheld the mandate, it was far less likely that the Supreme Court would choose to hear the case.

Circuit court decisions are usually produced by three judge panels, which can be appealed to a panel of all the circuit's judges sitting together (called an en banc court). Therefore the mandate opponents sought to bring cases in a circuit that had very conservative Republican-appointed district judges and where Republican appointees held a majority of the appellate court seats in case the decision went en banc. The most likely target was the Eleventh Circuit, which sits in Atlanta.

Sure enough, a panel of the Eleventh Circuit upheld a lower court's decision declaring the mandate unconstitutional. That decision proved crucial, because as soon as one circuit court struck down the mandate, Supreme Court review was almost certain. First, there was now a split among the circuit courts, which often leads the Supreme Court to take a case. Second, and perhaps more important, the Affordable Care Act requires considerable implementation by state and federal governments. The unenforceability of a key provision of the ACA in several states created uncertainty and slowed down implementation. Therefore the Obama Administration did not even bother to seek en banc review. It wanted the issue resolved once and for all by the Supreme Court.

The Supreme Court then granted an astounding six hours of oral argument for the case, suggesting that the challenge deserved the most serious consideration. Then, at the arguments in late March, Justices Antonin Scalia and Samuel Alito strongly signaled their disapproval of the mandate, while Chief Justice John Roberts and Justice Anthony Kennedy and asked skeptical questions of both sides. It now became clear that a five person majority might indeed strike down the mandate.

Was there a magic moment when the challenge to the mandate moved from off the wall to on the wall? There are many possible candidates. But the most important ingredient was the overwhelming support of the Republican Party and its associated institutions for the challenge. In the United States, parties are a central driver of constitutional change, both through the constitutional claims they get behind and through the judges they help appoint to hear those claims. Will yet another formerly off-the-wall argument become embedded in our nation's fundamental law? We'll soon find out.

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies.