In a recent post, my co-blogger Ilya Somin points out the polls showing that the individual mandate is very unpopular. The mandate polls just terribly. Few people like it, and most people would be happy for it to go. Ilya suggests that the unpopularity of the mandate gives the Court more freedom to strike down the mandate. To the extent the Justices might want to strike down the mandate but fear political backlash, the thinking runs, they need not worry. From that perspective, the mandate’s unpopularity puts a legal realist thumb on the scale of striking down the mandate.
Perhaps that’s right. But there’s a counterargument worth noting: The unpopularity of the mandate also rests in some tension with a major argument challenging its constitutionality. As Ilya has explained in a forthcoming article, the argument against the mandate is based in part on a predicted slippery slope. The mandate is unprecedented, the argument runs. If the Supreme Court upholds the mandate and legitimates the mandate as constitutional, then that will usher in a new period of mandates that will effectively destroy any notion of the federal government as a government of limited power. As Ilya notes, this argument rests in part on a prediction as to the political popularity of mandates. The argument is strongest if mandates are popular enough to be enacted into law:
The empirical aspect of the issue is more difficult to assess. It depends in part on future political dynamics that are hard to predict. Nevertheless, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups. Such mandates could be made more palatable to public opinion by posing as public health measures or efforts to strengthen the economy. They could be promoted by classic “Baptist-bootlegger coalitions,” combining public health advocates and industry interest groups. Such a coalition can effectively portray an effort to benefit an influential interest group as a measure promoting the public good of the general public.
The polls on the unpopularity of the mandate don’t say much about why so many people oppose the mandate. But one plausible interpretation of the polling numbers is that mandates are just political losers. The reason why is probably obvious: No one likes to be told what to do. When the government mandates action, it infringes on liberty in a way that most folks intuitively get, and many people intuitively oppose. So if you’re a politician, it’s more politically palatable to achieve the same regulatory result by creating an entitlement. Lots of people love a handout but abhor a mandate, even if they end up operating similarly in practice (because we have to pay for the handout somehow). To the extent that reaction explains the unpopularity of the mandate, it arguably undercuts the slippery slope argument made by the challengers.
Anyway, I don’t know in the end how these two arguments play out against each other. If our many posts on the mandate suggest anything, there will be sharp disagreement on how strong these arguments may be. But I did want to point out that the polls showing the unpopularity of the mandate arguably cut both ways.