Jon Adler links to a new paper, titled the Uneasy Case for the Affordable Care Act. Adler makes an interesting point–which I think ties into issues of popular constitutionalism–about how the argument against the mandate, on both sides, has evolved quite a lot.
That the constitutionality of the mandate is not an “easy” case is shown by the fact that its defenders have not coalesced around a simple and straightforward defense. The arguments put forward by prominent academics supporting the mandate (e.g. Balkin, Amar, etc.) have evolved substantially, and some early arguments in support of the mandate have been abandoned. The arguments contained in the Justice Department’s briefs have evolved substantially as well. Not only has the mandate divided the appellate courts, but those judges voting to uphold the mandate have adopted differing (and at times even conflicting) rationales. These are not the hallmarks of an easy case.
And an important aspect of these evolving constitutional arguments is whether they are accepted by the people. And according to Randy’s recent post, 72% have seemed to accept the arguments of the challengers–and of those 72%, 54% think the health care law is a *good* thing. Think about that, a big chunk of people who agree that the law is unconstitutional (based on Randy’s arguments) nonetheless think the law is a good thing. Popular constitutionalism, indeed.