Even so, why were so many on the Right willing to embrace an idea that conservatives attack as uncons utional today? How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts? One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be. Another is that the legal environment has changed dramatically. In 1994 it had been over 50 years since the Supreme Court had invaildated a federal law for exceeding the scope of the Commerce Clause. The Supreme Court’s decision in
United States v. Lopez , striking down the Gun-Free School Zones Act, was not until 1995 — after the Clinton health care plan had been defeated and after the Republicans had retaken Congress, effectively ending the debate over health care reform. Prior to
Lopez, it was simply assumed there were no meaningful limits on the federal government’s regulatory powers. After
Lopez (and
United States v. Morrison in 2000), that all changed. While the argument that the individual mandate exceeds the scope of federal power
as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for
those of us who believe
Gonzales v. Raich was wrongly decided).
Of course it’s also fair to argue that many Republican office-holders and partisans are simply opportunistic, opposing ideas today they supported before merely to oppose the President. In many cases, I am sure this is true. Just witness Republican efforts to transform themselves into champions of Medicare, opposing any and all spending cuts. But just because this may be true of partisans and politicians, does not mean its true of those in the broader conservative and libertarian movements. Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.