In Salon, Andrew Koppelman sets out the process by which the constitutional challenge to the Affordable Care Act's individual mandate made its way - via think tank issue briefs, op-eds, and blog posts - from being a completely off-the-wall notion to a nearly universal article of constitutional faith among conservative activists. This look back is even more important as a means of anticipating how the Right is likely to launch future attacks against Social Security, Medicare, and any number of health, safety and consumer protections. The assault on health care reform shows that the right's combination of established infrastructure, an activist and ideological segment of the judiciary, and partisan media is a powerful one. Progressives should remember how aggressively and effectively the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.
Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.
It is noteworthy that Fox News was out in front, driving the constitutional attack on the health care law into mainstream debate. Bill O'Reilly raised the constitutional issue on his show on September 9, over a week before Barnett, soon to become the public face of the cause, made his first public pronouncement. That night, in the "Talking Points Memo" portion of his show, O'Reilly said:
And finally it may be unconstitutional to force Americans to buy health care insurance, although Mr. Obama wants that and compares it to mandatory auto insurance. With auto insurance you have a machine that can do damage.
Could be unconstitutional to force you to buy this stuff. But if Obamacare passes, you will be on somebody's policy. That is certain. That's the memo. [Fox News, The O'Reilly Factor, 9/9/09, via Nexis]
The right offered another recent reminder of the media muscle it can bring to constitutional issues. After Senator Patrick Leahy, the chair of the Senate Judiciary Committee made a floor statement in which he noted that the Supreme Court is increasingly seen as ideological and stated that he had "reason to hope that the Court will do the right thing." As Nan Aron of the Alliance for Justice has written, this mild statement drew a massively disproportionate pushback from the right. Aron catalogued op-eds and editorials from Washington Post columnist Kathleen Parker ("The Public Trial of Justice Roberts"); the Wall Street Journal editorial page ("Targeting John Roberts);" and Investor's Business Daily ("Left Targets Chief Justice Roberts to Save ObamaCare)." As Aron noted:
Interestingly, many of these fevered commentaries use virtually the same language (someone clearly sent around a persuasive set of talking points), and all warn of a vast left-wing conspiracy to somehow bludgeon John Roberts into submission on the health care case.
If there was a common set of talking points, it seems that other conservative writers found them equally persuasive. Even after Aron's post appeared, syndicated columnist George Will ("Liberals put the squeeze to Justice Roberts") and law professor and former federal judge Michael McConnell ("The Liberal Legal Meltdown Over ObamaCare") also weighed in and made many of the same points from the earlier writings.
This ability to dictate debate on constitutional issues on the Right's terms is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative and pro-corporate wing of the federal judiciary. In recent months, a number of federal judges -- each of them appointed by Republican presidents - have engaged in behavior that calls into question how far they would go to achieve their ideological and political goals. Judge Jerry Smith of the U.S. Court of Appeals gave Justice Department lawyers a highly unusual "homework assignment" in direct response to public comments made by President Obama, a move that was sharply criticized by many observers, including conservatives, but cheered by right-wing media. U.S. District Judge Richard Cebull of Montana sent a racist email attacking President Obama from his official courthouse email account, and then offered as a defense that his action was motivated by his bitter partisan opposition to Obama, not racism. In addition, as Media Matters has documented, Supreme Court Justice Antonin Scalia repeatedly recycled right-wing media talking points during oral argument on the Affordable Care Act.
Finally, and perhaps most ominously, Judge Janice Rogers Brown of the influential U.S. Court of Appeals for the D.C. Circuit recently authored an opinion that Jeffrey Rosen of The New Republic wrote "suggests that the Affordable Care Act will be far from the last federal regulation to be threatened by conservative judicial activism." In the opinion, Brown decried as "potent threats to the Republic" both "broad-based entitlements" (Social Security and Medicare) and "licensing restrictions" (health, safety and economic regulations).
As Simon Lazarus, an expert on social safety net benefit laws has written, given the arguments that opponents of the Affordable Care Act have made, a victory in the health care case will both embolden them and equip them with a Supreme Court precedent that can be turned against Social Security, Medicare and Medicaid.
To libertarian theorists and advocates, forced contributions to public health and/or retirement programs are, in principle, not necessarily less objectionable than mandatory private insurance. Certainly, cases will be brought alleging that the principle on which a decision adverse to the ACA rests necessarily implicates Medicare and Social Security taxes as well, whether as a substantive due process claim or as a carve-out from the tax power. In the short term, it may seem extreme and untenable, at least politically, to apply the principle underlying a decision to strike down the ACA mandate to require Medicare and Social Security contributions to become voluntary. But just a year ago, most legal experts regarded the claims put forward in the health care reform cases as improbable, if not frivolous. Once such a principle has been embraced by the Supreme Court, political acceptance, not legal logic, will determine how far it will carry in the courts, and how fast it might travel.
As the recent example of the challenge to health care reform demonstrates, for enthusiastic consumers of right-wing media the "political acceptance" of new challenges to safety net programs of which Lazarus writes will likely not be long in coming. For Judge Brown and the activist colleagues who share her views, such challenges cannot come soon enough.