In a widely read recent New Yorker article, Ezra Klein argues that both the rise of conservative opposition to the individual mandate and the greater than expected success of the constitutional challenges to the law is largely a result of “motivated reasoning”:
On 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 Republicans have made the individual mandate the element most likely to undo the President’s health-care law. The irony is that the Democrats adopted it in the first place because they thought that it would help them secure conservative support. It had, after all, been at the heart of Republican health-care reforms for two decades....
[Senator Ron] Wyden’s bill was part of a broader trend of Democrats endorsing the individual mandate in their own proposals. John Edwards and Hillary Clinton both built a mandate into their campaign health-care proposals....
This process led, eventually, to the Patient Protection and Affordable Care Act—better known as Obamacare—which also included an individual mandate. But, as that bill came closer to passing, Republicans began coalescing around the mandate, which polling showed to be one of the legislation’s least popular elements. In December, 2009, in a vote on the bill, every Senate Republican voted to call the individual mandate “unconstitutional.....”
Jonathan Haidt, a professor of psychology at New York University’s business school, argues in a new book, “The Righteous Mind,” that to understand human beings, and their politics, you need to understand that we are descended from ancestors who would not have survived if they hadn’t been very good at belonging to groups. He writes that “our minds contain a variety of mental mechanisms that make us adept at promoting our group’s interests, in competition with other groups. We are not saints, but we are sometimes good team players.....”
Psychologists have a term for this: “motivated reasoning,” which Dan Kahan, a professor of law and psychology at Yale, defines as “when a person is conforming their assessments of information to some interest or goal that is independent of accuracy”—an interest or goal such as remaining a well-regarded member of his political party, or winning the next election, or even just winning an argument.
Klein’s argument is partly correct. There is no question that many Republicans flip-flopped on the individual mandate, and “motivated reasoning” probably played a role in a lot of these cases. Had Mitt Romney won the presidency in 2008 and tried to nationalize Romneycare, many of the Republicans now opposing Obama would have gone along with it out of party loyalty.
But motivated reasoning is far from the whole story. Klein ignores the fact that many conservatives turned against the individual mandate idea long before Obama proposed it. Many others opposed it from the start, as did most libertarians. Romneycare was very controversial in conservative circles when Massachusetts adopted it in 2006, and was almost universally condemned by libertarians.
Klein also overstates the role of motivated reasoning in constitutional litigation against Obamacare. It is certainly true that courts would be unlikely to strike down a major federal law that enjoyed broad bipartisan support. In that sense, the opposition of the GOP and the willingness of 28 state governments to file lawsuits against it played a crucial role. One can say the same thing for almost every major case challenging the constitutionality of a prominent law. None of them are likely to succeed in the face of overwhelming bipartisan opposition.
At the same time, it is simply not true, as Klein claims, that there was a “consensus” of professional opinion in favor of the mandate’s constitutionality until the GOP overwhelmingly came out against it. No such consensus existed, as I pointed out in this December 2009 post. Conservative and libertarian constitutional objections to federal health insurance mandates long predate Obamacare, dating back at least to 1993. Many months before the law was enacted, President Obama apparently feared that the mandate would encounter serious legal challenges.
And anyone who believes that “it was hard to find a law professor in the country who took the [anti-mandate cases] seriously” when they were first filed clearly wasn’t reading the Volokh Conspiracy. There were several of us who supported the cases at that time – including well-known constitutional law scholars Randy Barnett, Jonathan Adler, and David Kopel. We weren’t the only ones, either. Richard Epstein – one of the nation’s most-cited legal scholars – also argued that the mandate was unconstitutional. Steve Calabresi of Northwestern, another leading constitutional scholar, coauthored an op ed supporting the legal argument against the mandate just a few days after the first cases were filed. And these were not the only examples.
Then as now, more academics supported the mandate’s constitutionality than opposed it. But that was largely because law professors are overwhelmingly left-wing, and many of them believe that there are virtually no judicially enforceable structural limits on Congress’ power under the Commerce Clause. Outside the academy, professional legal opinion was much more evenly divided, and there was certainly no clear consensus supporting either side.
To the extent that motivated reasoning played a role in the mandate debate (as it surely did), it was not confined to conservative Republicans. Numerous Democrats staunchly opposed the mandate until Obama and other party leaders endorsed it in 2009, reversing Obama’s strong position against it in the 2008 campaign. Had a Republican president proposed a mandate strongly supported by insurance companies, it is unlikely that he would have gotten anywhere near as much Democratic support for the idea as Obama did.
UPDATE: In a response to this post, Kevin Drum argues that the fact that courts are more likely to strike down a law if it lacks bipartisan support says something invidious about the Roberts Court and the modern GOP. Perhaps it does. But if so, the problem is not unique to them. Courts have been reluctant to strike down laws with strong bipartisan support throughout American history. That is probably inevitable in a system where judges are politically appointed and must rely on the cooperation of other political actors in order to enforce their decisions. Drum also implies that there is something sinister about Republicans integrating legal challenges to Obamacare with their political strategy. That, too, however is nothing new. Liberals have done the same thing on a variety of issues for decades. I don’t think there is anything wrong with that. But if there is, it’s not a sin unique to today’s GOP.