How did the individual mandate, a Republican Party idea, come to gain near universal opposition by Republicans as unconstitutional? That is the question asked by Ezra Klein in Unpopular Mandate in the June 25 New Yorker. Klein’s answer relies on social science research and is fascinating.
Klein traces the genesis of the individual mandate from a policy proposal made by the conservative Heritage Foundation in 1989, to Republican legislation filed in 1993 as an alternative to the Clinton health care plan, to a proposal released by Democratic Senator Ron Wyden in 2006 that gained the co-sponsorship of Utah Republican conservative Bob Bennett in 2007 and which was finally co-sponsored by eleven Republicans and nine Democrats. In June 2009 Wyden-Bennett gained the approbation of Mitt Romney, a politician who knows something about the individual mandate.
One of the leading skeptics on the individual mandate was none other than Barack Obama. But when his plan adopted the individual mandate, something strange happened. Klein writes that the Republicans, influenced by polling that the individual mandate is unpopular, decided to oppose it. In a December 2009 vote every Senate Republican voted that the mandate is unconstitutional. As Klein notes, this would implicitly put many Republicans in the odd position of having backed an unconstitutional measure for about two decades. So what happened?
The herd moved.
Klein cites Jonathon Haidt’s The Righteous Mind: Why Good People Are Divided by Politics and Religion, which Professor Duquette and I have discussed many times on this blog. Haidt argues that the survival of mankind depended upon our excelling at living in and adapting to group conditions. So being a part of a group is important and adapting one’s outlook to that of the group is a crucial part of group living. Klein also discusses “motivated reasoning” which according to Yale psychologist Dan Kahan involves an individual conforming his or her opinion to a position “that is independent of accuracy” – a goal might be “remaining a well-regarded member of his political party, or winning the next election, or even just winning an argument.”
When the law suits challenging the individual mandates were filed, constitutional law scholars almost all dismissed the suits as farcical. Now it appears quite likely the Supreme Court will invalidate the individual mandate. One of those professors, Orin Kerr of Georgetown, told Klein he sees three factors in that change. First, the Republican Party made opposition to the mandate a party position. (See also Deborah Stone’s discussion of loyalty in Policy Paradox: The Art of Political Decision Making). Second, the conservative establishment media adopted the unconstitutionality of the mandate, helping to make a far-out position seem mainstream. (See also Kathleen Hall Jamieson and Joseph N. Cappella, Echo Chamber: Rush Limbaugh and the Conservative Media Establishment). Finally, two conservative district court judges ruled against the mandate echoing the position adopted by the Republican Party and conservative media establishment. The media covers conflict and invalidating the measure creates conflict, so the two conservative judicial opinions were heavily covered and got front-page placement. But the conservative decisions were outnumbered by many other district courts that took the more conventional judicial view and upheld the law. The mainstream opinions created no real conflict and were thus largely ignored. When news coverage of health care was high, according to the Pew Center Project for Excellence in Journalism, “the language and framing of the issue favored by the bill’s Republican critics was far more prevalent in the news coverage than the language and framing favored by Democrats supporting the bill.” (See Pew here).
Take the time to read Klein’s piece as we all await the Supreme Court’s decision, due later today.
So this pretty much leaves Chief Justice Roberts on the outside of his group, if the above analysis is correct. Those conservative cocktail parties are going to be pretty uncomfortable for a while. Probably forever.
But one Roberts remark struck me, as reported on SCOTUSblog.com, he said it is “not our job to save the people from the consequences of their political choices.” It reminded me of my grad school course The American Judiciary with Prof. Robert Scigliano, and something Justice Holmes once wrote to a friend, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.” So perhaps, especially as this is the “Roberts Court,” the chief justice chose to adhere to a group more important to him than the conservative establishment.