David Schraub opines on how conservatives got the mandate from “off the wall” to “on the wall”:
From a liberal vantage point, the reason it is so hard to take the anti-ACA argument seriously as a matter of principle is simple: The structure of the ACA was originally a Republican innovation, the GOP’s answer to Hillarycare, most associated with Mitt Romney. At that point in time, its constitutionality was not remotely controversial. The only things that have changed from now until then are (a) it became a Democratic plan rather than a Republican plan and (b) Republicans have staged a multi-year temper tantrum declaring it (much like everything else the Obama administration does) as a reincarnation of the Khrushchev administration. Given that, it is a very plausible belief that those factors (that it is an identifiably Democratic plan, and that Republicans have thrown a massive hissy fit about it) are the key variables in transitioning the anti-mandate argument from “off the wall” to “on the wall”.
Consequently, in making the legitimacy arguments, liberals are trying to have a debiasing effect — in essence, telling the Court that “were this not a flagship liberal law bitterly opposed by Republicans, you would not find this even remotely controversial. To the extent that you think this is even a live issue, it is likely a result of the underlying political currents, not legal argumentation.” To be sure, I’m not arguing that someone like Randy Barnett only thinks the ACA is unconstitutional because its a high-profile Democratic agenda item which Republicans oppose. I am saying that were it not those things, Randy Barnett would be another Richard Epstein — a very smart guy whose opinions on the Constitution rarely enter the same time zone as mainstream legal practice. Randy Barnett’s opinions are genuine, but they’re only mainstream because he’s riding a wave of Republican fury which is entirely political. . . .
An anti-ACA opinion will undoubtedly cause an explosion of anger from the left, and it will be interesting to see how the public reacts to that. If there is one thing that has been demonstrated over the past few years, it’s that if a large group of people can be mad enough and loud enough for long enough, they can do a surprisingly good job of rallying the center. It’s part of the reason why we’re seeing such stark political polarization, and I don’t think it’s a good thing, but it’s also a spiral I’m not sure we can escape from.