Unprecedented: The Constitutional Challenge to Obamacare

by Josh Blackman, Randy Barnett (Foreword by)

Overview

Foreword by Randy E. Barnett

In 2012, the United States Supreme Court became the center of the political world. In a dramatic and unexpected 5-4 decision, Chief Justice John Roberts voted on narrow grounds to save the Affordable Care Act, commonly known as Obamacare. Unprecedented tells the inside story of how the challenge to Obamacare raced across all three branches of government, and narrowly avoided a constitutional collision between the Supreme Court and President Obama.

On November 13, 2009, a group of Federalist Society lawyers met in the Mayflower Hotel in Washington, D.C., to devise a legal challenge to the constitutionality of President Obama's "legacy" -- his healthcare reform. It seemed a very long shot, and was dismissed peremptorily by the White House, much of Congress, most legal scholars, and all of the media. Two years later the fight to overturn the Affordable Care Act became a political and legal firestorm. When, finally, the Supreme Court announced its ruling, the judgment was so surprising that two cable news channels misreported it and announced that the Act had been declared unconstitutional.

Unprecedented offers unrivaled inside access to how key decisions were made in Washington, based on interviews with over one hundred of the people who lived this journey -- including the academics who began the challenge, the attorneys who litigated the case at all levels, and Obama administration attorneys who successfully defended the law. It reads like a political thriller, provides the definitive account of how the Supreme Court almost struck down President Obama's "unprecedented" law, and explains what this decision means for the future of the Constitution, the limits on federal power, and the Supreme Court.

Product Details

ISBN-13:	9781610393294
Publisher:	PublicAffairs
Publication date:	09/10/2013
Sold by:	Hachette Digital, Inc.
Format:	eBook
Pages:	352
File size:	569 KB

About the Author

Josh Blackman is an assistant professor of law at the South Texas College of Law and president of the Harlan Institute, a nonprofit dedicated to raising awareness about the Supreme Court and the Constitution. He has published over a dozen law review articles about constitutional law, written numerous op-eds, and been interviewed about the Supreme Court by the New York Times, CNN, ABC News Radio, Reuters, the National Law Journal, the American Bar Association Journal, and Yahoo! News. The American Bar Association Journal selected his personal blog as one of its top 100 Legal Blogs. He also runs FantasySCOTUS.net.

Read an Excerpt

Reacting to CNN’s false reports, many Republicans were ebullient. Chants of “USA, USA” erupted on the Courthouse steps. Across the street from the Court, Ohio Republican Rep. Jean Schmidt, a proud member of the Tea Party—who had lambasted Bart Stupak for accepting President Obama’s executive order—was captured on film listening intently to her cell phone. Moments after CNN’s report, Schmidt screamed at the top of her lungs, “Yes, Yes.” A blogger at CrooksandLiars said the yelp reminded her of Meg Ryan’s orgasmic outburst in When Harry Met Sally.

“What else?” Schmidt demands of whoever is on her phone. A man on the street yells to her, “Speak!” Schmidt continues, “Thank God. They struck down the individual mandate. They took it away.” People on the street start screaming. One yells “Oh my god.” Another yells, “The mandate is struck down. The mandate is struck down.” The cheering outside the Court gets louder and louder. In the backdrop, you can see people waving Gadsen flags, celebrating. They chanted “Constitution wins!” This joy would be short-lived.

A number of politicians tweeted out, celebrating the victory. Michigan Republican Rep. Justin Amash tweeted “This is a big win for #liberty and the #Constitution.” California Republican Rep. Darrell Issa, the Chairman of the House Oversight and Government Reform Committee, promptly retweeted that message. Florida Republican Rep. Dennis Ross tweeted, “Let Freedom Ring.” North Carolina Republican Rep. Virginia Foxx tweeted, “#Unconstitutional: #SCOTUS overturns #Obamacare’s individual insurance #mandate. Developing...” All of the tweets were deleted within ten minutes.

Jay Carney, the White House press secretary, watched with trepidation the initial reports from CNN and Fox News. The president was still in the dark.

Table of Contents

Author’s Note
Foreword by Randy Barnett
Introduction
Part I, The Once and Future Mandate (October 2, 1989–January 20, 2009)
Part II, Unprecedented (January 21, 2009–March 23, 2010)
Part III, Regulating Inactivity (March 22, 2010–January 31, 2011)
Part IV, Coercing the States (February 1, 2011–November 13, 2011)
Part V, In the Supreme Court (November 14, 2011–March 22, 2012)
Part VI, Still in the Supreme Court (March 23, 2012–March 28, 2012)
Part VII, Outside the Supreme Court (March 29, 2012–June 27, 2012)
Part VIII, Judgment Day (June 28, 2012)
Part IX, The Switch in Time that Saved Nine (June 29, 2012–January 21, 2013)
Epilogue
Index

Editorial Reviews

An unbiased analysis of conservatives’ efforts to overturn the Affordable Care Act (aka Obamacare) would be a welcome addition to the literature on the legislation. Unfortunately, with Blackman’s account, warning signs are evident early on—the foreword was written by Randy E. Barnett, a Georgetown law professor who dedicated himself “to the constitutional challenge to Obamacare” for almost three years, and whom Blackman dubs the “intellectual godfather” of the cause. Barnett notes that Blackman spoke to “nearly everyone involved,” but the author himself acknowledges that he “made no efforts to contact any of the justices or their clerks”—explaining, “This book is about how people outside the Court reacted to the legal drama inside the Court.” Though the 2012 decision allowed the act to stand, Blackman argues that the logic behind Chief Justice Roberts’s deciding vote—which hinged on a rewrite of the individual mandate statute—set the precedent for future conservative arguments in favor of limiting federal powers. Blackman does a stellar job of calling out both parties for their flip-flopping with respect to the individual mandate, but his viewpoint is limited. Agent: Don Fehr, Trident Media Group. (Sept. 13)

Publishers Weekly

“Excellent.” — Wall Street Journal

“Blackman has written a deeply researched, highly readable account of the conservative challenge to the ACA, which, as a recent law graduate, he witnessed from the inside.” — American Prospect

“A young legal scholar delivers an impressive blow-by-blow account of the court battle to defeat the Affordable Care Act… With his strong connections among the conservative and libertarian lawyers who mounted the constitutional challenge and his talent for translating arcane legal-speak, Blackman more than capably captures this dramatic constitutional showdown.” — Kirkus Reviews

“Blackman, law professor, blogger, and representative of a coalition of independent business interests opposed to the program, spent more than two years following the legislative process that produced Obamacare and the legal challenges to the program. Blackman argues that the process was unprecedented in many ways… Blackman also explores the significance of the decision as a galvanizing issue for conservatives and future implications for challenges to government power.” — Booklist

“Blackman does a stellar job of calling out both parties for their flip-flopping with respect to the individual mandate.” — Publishers Weekly

From the Publisher

2013-08-15
A young legal scholar delivers an impressive blow-by-blow account of the court battle to defeat the Affordable Care Act. "Unprecedented," writes Blackman (South Texas College of Law) about the president's health care initiative, "a monumental and transformational law" critics derisively branded "Obamacare," a label the president later happily embraced. Unprecedented, too, was the legislative process that enacted it without a single Republican vote, the widespread and swift mobilization of citizens' groups to oppose it, and the legal challenge to overturn it. Blackman provides a helpful legislative history underlying Obamacare's enactment, charting the major parties' shameless shifting of positions on the individual mandate, and he explores the extralegal machinations surrounding the litigation. He focuses, though, on the court duel, the uncommon 26-state coalition opposing the law, the tortuous progress of the health care cases through the lower courts, and the noteworthy three days and over six hours the Supreme Court devoted to oral argument in NFIB v. Sebelius. Employing a theory roundly ridiculed before any litigation began, the plaintiffs argued that neither the Commerce nor the Necessary and Proper Clause permitted the government to require individuals to purchase health care insurance. Remarkably, a majority of the court agreed, but in an opinion worthy of the wily John Marshall, the chief justice found the law constitutional under the government's power to tax. As the implications of John Roberts' controversial opinion play out in the court's future jurisprudence and as the realities of Obamacare's provisions unfold in our daily lives, historians will look to this wild and, yes, unprecedented moment, when legal experts seriously wrangled over whether the federal government could require a citizen to buy broccoli. With his strong connections among the conservative and libertarian lawyers who mounted the constitutional challenge and his talent for translating arcane legal-speak, Blackman more than capably captures this dramatic constitutional showdown.

Kirkus Reviews