The year was 1990.
Then Senator Joseph R. Biden, Jr. of Delaware and Senator Strom Thurmond of South Carolina introduced S. 3266, the Crime Control Act of 1990. The law, introduced on October 27, 1990, sailed through Congress in one day. It passed the Senate by unanimous consent before 5 o’clock that evening. At 11:56 p.m. the House of Representatives approved it by 313-1. It was a bipartisan compromise and sailed through both house of Congress with Republicans and Democrats alike approving it. For perspective on this bipartisan act of supposed good governance, it took longer to for the legislation to be put in final form and presented to the President than it did to pass the Congress. Having been introduced and passed on October 27, 1990, it was not even presented to the President until November 19, 1990, and was not signed until ten days later.
Three years later, many of the same Republicans who supported the Crime Control Act of 1990 would rally behind the individual mandate as their counter-proposal to Hillary Clinton’s healthcare plan.
In 1995, five members of the United States Supreme Court declared one section of the bipartisan Crime Control Act of 1990, called the Gun-Free School Zones Act of 1990, an unconstitutional reach for the federal government even via the commerce clause. The case, United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995) was the first time in a half century the Supreme Court restricted Congress’s powers under the commerce clause of the Constitution.
Lopez hindered Congress’s power to restrict people’s ability to carry guns near schools — not exactly something a lot of Americans were against. There was no hue and cry from the left about how the Supreme Court was going to be unpopular. But more importantly, back in 1995, it did not matter that the Republicans, like the Democrats, thought Congress had the power to regulate guns carried near schools.
The benefit of being a leftist is that history does not matter. Twenty years after the law passed with no thought as to its constitutionality, the left is setting up the media narrative anticipating Obamacare being overturned all because the left never bothered, at the time, to take seriously the idea that the individual mandate might be unconstitutional.
That the left is pushing so hard suggests they know that the Court is very likely to throw out the individual mandate.
The spin the left has chosen is summed up succinctly by Kevin Drum quoting Ezra Klein, a twenty-something who believes no one pays attention to the Constitution anymore because it is so old. From Kevin Drum referencing Ezra Klein’s New York Magazine damage control effort on behalf of Obamacare:
For all practical purposes, [Professor Orin] Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they’re on board. And that goes all the way up to the Supreme Court.
In other words, because Republicans were a-okay with the individual mandate before Obama decided to push it forward and because so few law professors thought it was unconstitutional, the judges and Justices of the Supreme Court must just be following partisan marching orders in what they are doing.
This is what the left’s spin is and it is what the media will adopt in their Devil’s Advocate approach of feigned objectivity in covering the Supreme Court ruling.
First, while a lot of Republicans did support the individual mandate, as did the center-right think tank the Heritage Foundation, many conservatives and a vast number of libertarians have always believed the individual mandate was unconstitutional. In fact, even internally at the Heritage Foundation way back when the mandate was first rolled out, a good number of people there thought it was unconstitutional and bad policy.
Conservative members of Congress thought it was unconstitutional and bad policy too. That politicians from the GOP thought it was okay versus ideological conservatives and libertarians says more about the establishment GOP than about ideological conservatives and Supreme Court Justices.
Second, in 1990, an overwhelming number of Republicans and Democrats both agreed the Gun-Free Schools Act of 1990 was constitutional. The Supreme Court said otherwise. Surely Chief Justice Rehnquist along with Justices O’Connor, Kennedy, Scalia, and Thomas got the memo from the RNC.
Many liberals are now coming to terms with their hubris and it is an ugly sight to behold. They were convinced the Constitution did not matter. They were convinced the individual mandate was constitutional because their left-wing law professors who also thought the Constitution didn’t much matter told them so. They had been surrounded by a lot of Republicans who in 1990 thought Congress could regulate guns around schools who went on, three years later, to think Congress could force people to buy health insurance. Neither the Republicans then nor the left now really thought the Constitution had much meaning beyond regulating the division of otherwise plenary power between branches of a federal government.
The reality is far different.
The Republicans of 1990 who sided with the Democrats on guns were the same Republicans who in 1993 supported an individual mandate as a way to undermine Hillary Clinton. They are not the free-market entrepreneurs like a future Florida Governor named Rick Scott who, with his own money, helped build the arguments to undermine Obamacare and Hillarycare before it. For the most part, they are not the same Republicans who, two decades later, came in to Congress wanting to restore the federalist balance of the Constitution.
More importantly, they are not the Supreme Court who, after the Heritage Foundation in 1989 had first suggested the individual mandate and after the Republicans in 1993 proposed it, ruled in 1995 that there were real limits on the commerce clause. Most importantly, they were not the voters who threw the Democrats out of Congress in 1994 and again in 2010 for their efforts to shake up the constitutional order under the guise of healthcare reform.
All the left’s handwringing over the Republicans’ support of the individual mandate fails to pay attention to Lopez, which came out after the GOP had largely abandoned the individual mandate. The left also fails to pay attention that the GOP’s base expended a great deal of energy driving from the party those who still supported the individual mandate and the GOP base has been far more successful at purging its establishment than the left has been. See e.g. Senator Ned Lamont . . . errrr . . . Senator Joseph Lieberman and former Senator Bob Bennett.
The left and its mouthpieces in the media will claim the Supreme Court is a partisan creature of the GOP. The reality is that the left is just really bad at remembering history.