Individual Mandate A Conservative Idea, Assumed Constitutional Until Health Reform Fight

Individual Mandate Invented By Conservative Heritage Foundation, Supported By GOP In '90s. In an article for The New Yorker, Washington Post columnist Ezra Klein wrote:

The mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation's health-care expert, argued, “Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.” The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act--the Republicans' alternative to President Clinton's health-reform bill--which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader. [The New Yorker, 6/25/12]

Klein: “It Was Hard To Find A Law Professor In The Country” Who Found Health Care Law Unconstitutional When It Was Passed. Klein quoted several law professors questioning the legal standing of the argument suggesting that an individual mandate for health insurance is unconstitutional at the time legal challenges against it began:

In 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. Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual's right not to buy health care if the government wants to mandate it.” 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.” [The New Yorker, 6/25/12]

Law Professor Unable “To Find Even A Hint Of The Constitutional Objection Before Obama's Election.” Andrew Koppelman, a John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University who is writing a book on constitutional objections to the law, wrote in Salon:

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process. [Salon, 5/31/12, emphasis in original]

More Courts Have Upheld The Law Than Overturned It. According to a compilation of court cases related to the Affordable Care Act by Kaiser Health News, four courts -- the Northern District of Florida, the Eastern District of Virginia, the Middle District of Pennsylvania, and the 11th Circuit Court of Appeals -- have struck down the law in whole or in part. In contrast, five courts -- the Western District of Virginia, the Eastern District of Michigan, the District of Columbia, the 6th Circuit Court of Appeals, and the D.C. Circuit Court of Appeals -- have upheld the individual mandate as constitutional. The 4th Circuit Court of Appeals later vacated the judgments of the Virginia district courts and remanded those cases for dismissal on jurisdictional grounds. In several other cases, courts dismissed the complaint without ruling on the constitutionality of the law. [Kaiser Health News, 11/14/11]

Media Overwhelmingly Focused On Rulings Against Constitutionality

84 Percent Of Broadcast And Cable Segments Reported On Rulings Striking Down The Law. Out of a total of 31 segments on ABC's World News, CBS' Evening News, NBC's Nightly News, CNN's The Situation Room, and Fox News' Special Report that reported on court rulings related to the health care law, 26 (or 84 percent) dealt with rulings that found the individual mandate unconstitutional. In contrast, only three (or 10 percent) segments reported on rulings that upheld the law. Two segments (or six percent) reported on court rulings that dismissed their cases without ruling on substance.

Broadcast And Cable Spent 97 Percent Of Time Devoted To Health Care Ruling Coverage On Decisions Striking Down The Law. Cable networks spent the most time -- about 50 minutes -- on reports on court rulings that found the individual mandate unconstitutional. The Situation Room devoted about 22 minutes, and Special Report devoted about 28 minutes, with each devoting less than one minute to reports on rulings upholding the law or dismissing the case. In broadcast, ABC and CBS only produced reports on court rulings that found the individual mandate unconstitutional -- about two-and-a-half minutes for World News and about three minutes for Evening News. Nightly News spent almost three minutes on reports on court rulings that found the individual mandate unconstitutional and less than 30 seconds reporting on rulings upholding the law.

Nearly 6 In 10 Print Articles In Leading Papers Reported Rulings Striking Down Law. Out of a total of 59 articles on court rulings in the Los Angeles Times, The New York Times, USA Today, The Wall Street Journal, and The Washington Post, 35 (or 59 percent) reported on decisions that found the individual mandate unconstitutional. In contrast, only 17 (or 29 percent) articles reported on rulings that found the provision to be constitutional. Eight articles (or 13 percent) reported on court rulings that dismissed their cases.

Articles On Rulings Finding Law Unconstitutional Far More Likely To Land On Front Page. Between all five papers, 10 articles reporting on court rulings that struck down the law in whole or in part were published on their respective front pages. In contrast, only a single article, from USA Today, about a court ruling upholding constitutionality of the law was published on the front page.

Message Received: Americans Now Overwhelmingly Believe That The Individual Mandate Is Unconstitutional

According To Polls, Americans Believe That The Individual Mandate Is Unconstitutional. The media's treatment of these court rulings puts the fact that many Americans now believe that the individual mandate is unconstitutional into important context. A USA Today/Gallup poll from February found that 72 percent of Americans believe that the provision is unconstitutional while only 22 percent believe that it is constitutional. Another poll from April by the Kaiser Family Foundation found that 51 percent of American adults think that the Supreme Court should rule that the individual mandate is unconstitutional while only 26 percent think that the court should rule for constitutionality. Similarly, a McClatchy-Marist poll conducted in March found that 53 percent of American adults hold the opinion that the Supreme Court should either “declare individual mandate unconstitutional” or “repeal [the law] completely” while only 35 percent believe the court should “let it stand.” [Gallup, 2/17/12; via Polling Report]

Methodology

Media Matters searched the Nexis database for news segments and articles within three days of each ruling from ABC's World News, CBS' Evening News, NBC's Nightly News, CNN's The Situation Room, Fox News' Special Report, the Los Angeles Times, The New York Times, USA Today, and The Washington Post. We searched the Factiva database for The Wall Street Journal.

We did not include MSNBC in the data because the cable network does not broadcast a straight-news program in the evening. NBC holds 50 percent ownership in MSNBC, and thus, does not schedule such a show to compete with its flagship program, Nightly News.

We counted any segments or articles that included keywords “Patient Protection and Affordable Care Act,” “Affordable Care Act,” “Patient Protection,” “Obamacare,” or “health care” within 50 words of keywords “appeals court,” “district court,” “appellate court,” “lower court,” “court,” “lawsuit,”or “judge.” We determined the length of each segment by reviewing the raw video.

For television, we did not include teasers or minor mentions within a segment unless such a mention generated significant discussion (e.g., a multiguest panel where one of the topics was a relevant court ruling). For print, we did not include op-eds or editorials.

The rulings we searched are listed below by date, ruling judge(s) and court, and result.

• June 17, 2010; David K. Duncan, District of Arizona. Case dismissed.
• September 8, 2010; Susan Webber Wright, Eastern District of Arkansas. Case Dismissed.
• October 7, 2010; George Caram Steeh, Eastern District of Michigan. Constitutionality upheld.
• November 4, 2010; Curtis Collier, Eastern District of Tennessee. Case dismissed.
• November 30, 2010; Norman Moon, Western District of Virginia. Constitutionality upheld.
• December 8, 2010; Susan Wigenton, District of New Jersey. Case dismissed.
• December 13, 2010; Henry Hudson, Eastern District of Virginia. Ruled unconstitutional.
• December 16, 2010; Thomas Schroeder, Middle District of North Carolina. Case dismissed.
• January 31, 2011; Roger Vinson, Northern District of Florida. Ruled unconstitutional.
• February 22, 2011; Gladys Kessler, District of Columbia. Constitutionality upheld.
• March 7, 2011; James Mahan, District of Nevada. Case dismissed.
• March 30, 2011; Joseph Laplante, District of New Hampshire. Case dismissed.
• March 31, 2011; Michael Schneider, Eastern District of Texas. Case dismissed.
• April 21, 2011; Freda Wolfson, District of New Jersey. Case dismissed.
• April 26, 2011; Rodney Sippel, Eastern District of Missouri. Case dismissed.
• June 18, 2011; Keith Giblin, Eastern District of Texas. Case dismissed.
• June 29, 2011; Boyce F. Martin, Jr., Jeffrey S. Sutton, James Graham, 6th Circuit Court of Appeals. Constitutionality upheld.
• August 3, 2011; Michael Chagares, Kent A. Jordan, Joseph A. Greenaway Jr., 3rd Circuit Court of Appeals. Case dismissed.
• August 12, 2011; Joel F. Dubina, Frank M. Hull, Stanley Marcus, 11th Circuit Court of Appeals. Ruled unconstitutional.
• August 13, 2011; 9th Circuit Court of Appeals. Case dismissed.
• August 27, 2011; Dana Sabraws, Southern District of California. Case dismissed.
• September 8, 2011; Diana Gibbon Motz, Andre M. Davis, James A. Wyan, 4th Circuit Court of Appeals. Case dismissed.
• September 13, 2011; Christopher Conner, Middle District of Pennsylvania. Ruled unconstitutional.
• November 11, 2011; Brett Kavanaugh, Harry Edwards, Laurence Silberman, D.C. Circuit Court of Appeals. Constitutionality upheld.