Unprecedented: The Constitutional Challenge to Obamacare

Unprecedented: The Constitutional Challenge to Obamacare


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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.

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Product Details

ISBN-13: 9781610393287
Publisher: PublicAffairs
Publication date: 09/10/2013
Pages: 352
Sales rank: 859,627
Product dimensions: 6.40(w) x 9.30(h) x 1.30(d)

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
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)

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