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President Barack Obama stops for ice cream at a local restaurant in Durham, New Hampshire, on June 25, 2012. It's a consequential week for the president, with the Supreme Court set to rule on his trademark health care legislation on Thursday.
Jewel Samad/AFP/Getty Images
Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.
If the Supreme Court justices decide to throw out the Affordable Care Act, even partially, we should be clear about the reasons for the failure. It won't be because Justice Department lawyers bungled their job. Rather, the case will have been lost outside the courts. The White House and its allies in Congress are the ones who failed to do a critical part of their job: to explain and defend to the public not only how the law works, but the constitutional case for upholding it. Leading Democrats didn't just fail at this task. They didn't even try.
When Republican governors and attorneys general filed their lawsuit challenging the ACA, they knew that there was agreement among both conservative and liberal constitutional experts that their claims had little merit, in light of multiple decades-old precedents. So Republicans and their allies in the legal world organized a campaign to shift the legal — and, critically, the political — consensus. With characteristic acuity, the central legal architect of the Right's strategy, Randy Barnett, predicted in December 2010 that, "if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid objections they might otherwise resist."
And so Republican editorial and op-ed writers, bloggers, and politicians synchronized their demonization of the ACA mandate, putting their constitutional critique front-and-center in their political attack. Indeed, the political and legal attacks were scarcely distinguishable. In the Right's frame, the mandate is unconstitutional because it constitutes an "unprecedented" invasion of liberty; it compels all Americans to "buy a commercial product," and to "enter commerce in order to regulate them"; and, because upholding it will inevitably lead to mandates to buy broccoli or health club subscriptions or burial insurance. Those legally flimsy but broadly digestible sound-bites were simultaneously a big part of their political pitch against the ACA. And that part of their pitch has gone almost entirely unanswered from defenders of the law.
Indeed, the Obama administration and its congressional allies famously declined to prioritize public defense of the ACA. After the law was signed and the opposition lawsuits were filed, the White House ramped up its ACA messaging operation. But even then, the near exclusive focus was to spotlight ACA benefits, with virtually no rap about why the law is constitutional. On March 21, 2012, a week before the Supreme Court argument, AARP's Jon Rother accused them, on NPR's All Things Considered, of being "missing in action" on the political messaging front. To this charge the White House's health reform point-person Nancy-Ann DeParle, an accomplished expert in the details of health legislation and policy, demurred. "I don't think that was our job," she said. Meanwhile, progressive advocates spent less than one third as much on ads supporting the law — virtually none of that on its constitutionality — as was spent on ads making the contrary case.
Lo and behold. One month before the Supreme Court heard the case, Gallup reported that the ACA mandate was deemed unconstitutional by 72 percent of all those polled on the question. This includes 70 percent of independents, 56 percent of Democrats, and, most telling of all, by 54 percent of respondents who said they thought the healthcare law "is a good thing." In other words, Republicans managed to prepare the political terrain so that sympathetic justices could feel emboldened to embrace their legal arguments.
In truth, this failure is only the latest expression of progressive reluctance to make constitutional arguments. That hesitation by liberals has essentially amounted to ceding the Constitution to their political opponents; Republicans clearly have no scruples about wrapping themselves in the mantle of the Constitution and the framers at every opportunity. Progressives must correct this chronic asymmetry if they harbor any hopes of saving contested legislative reforms, including landmark laws already on the books, from hostile judges and justices. Smart, well-founded, compelling legal and constitutional arguments must become a central part of progressives' repertoire, just as they are for the Right.
Such a case could have been made for the ACA: The framers' original Constitution — just as much as the post-New Deal precedents interpreting their work — require upholding the Act. The framers' overarching goal was to replace the feckless Articles of Confederation with a system of government built to last, and built to work. No element of that design had a higher priority than what D.C. Circuit Senior Judge — and conservative icon — Laurence Silberman termed, in his November 2011 decision upholding the mandate, "the imperative that Congress be free to forge national solutions to national problems." The framers did not intend a perverse misreading of the Constitution that would leave the nation impotent to reform a dysfunctional sector comprising 17 percent of the national economy.
The Obama administration did not make that argument in the run-up to oral arguments. But it might still have an impact going forward. Specifically, President Obama should respond to a ruling by the Court, win or lose, by explaining forthrightly that the Constitution empowers the federal government to meet urgent national needs — specifically, to correct chronic failures in a national market that causes 62 percent of personal bankruptcies, leaves tens of millions uninsured, and denies affordable health insurance for individuals with diabetes or asthma. Doing so will be essential to defend a favorable decision, or to support effective replacement legislation if the Court voids some or all of the law. More broadly, such an argument — linking an originalist constitutional narrative to the need to solve real-world problems — would announce that Democrats are finally prepared to beat-back constitutional challenges to other progressive measures.
The point is that the Right has coordinated its battles on constitutional terrain. If progressives (and moderates and even mainstream conservatives) do not respond in kind, reactionary judges will continue reshaping the Constitution into the caricature of the Tea Party's imagination. And the charter for responsive governance that the framers intended and the courts, until now, have prescribed, will be lost.