When Republican governors and attorneys general filed their lawsuit challenging the ACA, they knew that there was agreement among both conservative and liberal constitutional experts that their claims had little merit, in light of multiple decades-old precedents. So Republicans and their allies in the legal world organized a campaign to shift the legal—and, critically, the political—consensus. With characteristic acuity, the central legal architect of the Right’s strategy, Randy Barnett, predicted in December 2010 that, “if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid objections they might otherwise resist.”He's right and he's wrong. It can't be restated enough what a bamboozle the GOP has run on this, effectively transforming a settled constitutional question into an open constitutional question by exploiting the slack-jawed willingness of the punditocracy to accept all party assertions as roughly equivalent.
...the Obama administration and its congressional allies famously declined to prioritize public defense of the ACA. After the law was signed and the opposition lawsuits were filed, the White House ramped up its ACA messaging operation. But even then, the near exclusive focus was to spotlight ACA benefits, with virtually no rap about why the law is constitutional.
But was the better approach really for Obama and Co. to go on television and argue constitutional law? It's a field that most people have even less direct experience with than the esoterica of large-scale health care delivery mechanisms. The administration is correct on the merits, but do average Americans--on either side--have any chance of figuring that out on their own? No, they do not.
I've said it before and I'll say it again. Constitutional law is essentially fraudulent. Everyone--from the Supreme Court on down--values their actual political beliefs more than they value fuzzy divinations lifted out of a 220-year old piece of paper. Lazarus admits as much in his own article, when he notes that an unpopular health care law is more likely to be overturned. If focusing purely on legal arguments isn't going to convince the Supreme Court of the United States, why would we expect it to convince the broader population?
There are a lot of reasons the health care law is unpopular. First and foremost, it hasn't actually gone online yet; there's also the frustrating fact that many of the people who voted for it have spinelessly refused to defend it in public. Barack Obama's reluctance to cite Wickard v. Filburn at the bully pulpit is not one of those reasons.