A set of far-right academics, think tank types, and media figures have long promoted the idea that judges ought to throw out existing constitutional law and instead insist on using judicial review to essentially mandate libertarianism at the federal level. This has never been something that practical conservative politicians or actual conservative judges have been very interested in. But during the debate over the Affordable Care Act, the notion that the individual mandate was unconstitutional took hold in the conservative echo chamber. And right-wing media has become such a closed loop, that it’s now difficult for conservative politicians to do anything other than pretend to believe that this argument has some merit.
Thus far, however, the actual lawsuits leveled by state attorneys-general have all been by Republicans, giving the whole thing a partisan air. But my colleague Amanda Terkel points out that former rising star Bobby Jindal has devised a solution to the problem—blackmail:
In a subsequent address to employees of his office, the Attorney General said the decision was made more out of the necessity of saving jobs in his agency than any real hope—or desire—of overturning the health care law.
One employee said Caldwell, in a candid admission, claimed that a deal was made with Jindal. Under terms of that agreement, the governor would not make additional cuts in the attorney general’s budget if Caldwell joined in the litigation. Caldwell agreed to be the “token Democrat,” he said, so that he might save additional job cuts by an administration whose state goal is to reduce the number of state employees by as much as 5,000 per year over three years.
And now right-wing media will inform the right-wing audience that the lawsuit it bipartisan, making it even-more-difficult for right-wing politicians to avoid hopping on the bandwagon. This elite signaling will further convince people that the ACA is unconstitutional. It’ll be interesting to see what happens when this intellectual bubble is burst by contact with actual legal practice.