Jack writes in The Atlantic a piece about how the challenge to the ACA went from “off-the-wall” to “on-the-wall”:
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.
Randy’s theory about “commandeering the people” has remained off the wall (and none of the litigants have even bothered to argue it):
Conservative intellectuals — including lawyers and legal academics — were quite important in formulating the initial arguments against the mandate, and refining them along the way. But intellectuals by themselves could not move the arguments from off the wall to on the wall. Intellectuals make off-the-wall arguments all the time, and most of them stay that way. (In fact, intellectuals are often rewarded professionally for making arguments that are deliberately controversial and counterintuitive.)
Was there a magic moment when the challenge to the mandate moved from off the wall to on the wall? There are many possible candidates. But the most important ingredient was the overwhelming support of the Republican Party and its associated institutions for the challenge. In the United States, parties are a central driver of constitutional change, both through the constitutional claims they get behind and through the judges they help appoint to hear those claims. Will yet another formerly off-the-wall argument become embedded in our nation’s fundamental law? We’ll soon find out.