Ezra Klein: Why the Supreme Court Might Rule Against the Individual Mandate

Ezra Klein is the editor of Wonkblog and a columnist at the Washington Post, as well as a contributor to MSNBC and Bloomberg.

...Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.

The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty....

The unity among Senate Republicans reflected a unity among all the institutions associated with the Republican Party. Fox News and right-wing talk radio pushed the idea that the mandate was unconstitutional. Republican attorney generals began pushing the idea that the individual mandate was unconstitutional. Conservative think tanks — including the Heritage Foundation, which arguably brought the mandate to Washington and the Republican Party in 1989 — began releasing a steady stream of material arguing that the mandate was unconstitutional. Conservative legal scholars began developing arguments showing the individual mandate was unconstitutional. Within a matter of months, the fact that the individual mandate was unconstitutional was as much a part of Republican Party dogma as “no new taxes.”...