How did a legal argument that most scholars thought was crazy get taken so seriously so quickly? The Republican Party's support played a crucial role.
This month the Supreme Court will decide whether to strike down parts of the Affordable Care Act. Three years ago, the idea that the Act's mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy. And the very last people, one might think, who would proclaim it unconstitutional would be Republican politicians. After all, the individual mandate was developed in conservative think-tanks and touted by Republican politicians as a free market-based alternative to more liberal proposals like the Clinton health plan. Even after all of the controversy, it is still more likely than not that the Supreme Court will uphold the mandate. Yet in three years' time, the argument that the mandate violates the Constitution has moved from crazy to plausible, and -- following this March's Supreme Court oral arguments -- many now hope (or fear) that it might actually become the law of the land.
How did we get here? The changing perception of the individual mandate is an example of one of the most important features of American constitutional law -- the movement of constitutional claims from "off the wall" to "on the wall." Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can't believe what hit them.