The Owls' Nest

Click here for Ezra Klein's article in The New Yorker, Unpopular Mandate: Why do politicians reverse their positions?

When the Patient Protection and Affordable Care Act (Obamacare) was signed into law, there were hardly any legal scholars in the country who considered the universal mandate -- forcing people to buy health insurance from private carriers -- to be unconstitutional. In fact, the individual mandate was first proposed in 1989 by the right-wing Heritage Foundation and enthusiastically endorsed and supported by dozens of prominent Republicans (Clinton's failed proposal proposed a mandate on employers, not individuals).

It was mainstream Republican policy for two decades. But the Republican position reversed, almost overnight.

"In December, 2009, in a vote on the bill, every Senate Republican voted to call the individual mandate 'unconstitutional.'"

Now, less than three years later, the Supreme Court is expected to reach a decision soon on the constitutionality of the bill -- and the consensus among legal scholars is that the decision is pretty much a coin toss.

How can mainstream political opinion shift so rapidly and dramatically? Says Klein:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-per-cent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.” Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party”—Fox News, conservative talk radio, and the like—“and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.”

Klein cites psychological studies about why people's political beliefs sometimes seem irrational; I like the title of one of them, a 2006 paper, “It Feels Like We’re Thinking."

Four New Yorker pages, well worth reading.