Unprecedented Top 10 List

May 14th, 2012

I have collected the ten most prominent uses of the word “unprecedented” in connection with the Health Care litigation. I rank them in order of importance:



“As I explained in my earlier order, the fact that legislation is unprecedented does not by itself render it unconstitutional.”
-Judge Vinson, Florida v. HHS


“To uphold the Affordable Care Act’s mandatorypurchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history.”
–Judge Brett Kavanaugh, Seven-Sky v. Holder


“Whether looked at as a mechanism for providing affordable medical care for all or an unprecedented act of national paternalism, both characterizations of the individual
mandate go to a policy debate that the American people and their representatives have
had, and will continue to have, over the appropriate role of the national government in
our lives, the merits of which do not by themselves provide a cognizable basis for
invalidating the law.”
–Judge Jeffrey Sutton, Thomas More Law Center v. Obama


“It cannot be denied that the individual mandate is an unprecedented exercise of congressional power.”

— Judge Frank Hull, Florida v. HHS


“But beyond that, in the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case…”
— Solicitor General Donald Verrilli- HHS v. Florida


“The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce”
— Paul Clement- HHS v. Florida


“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. “
Randy Barnett, Todd Gaziano, Nathaniel Stewart (and don’t forget the last 2!)


“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
President Obama


“Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.”
–Justice Kennedy, HHS v. Florida


To be completed by the Supreme Court in June of 2012

Actually, I could only find 9 good quotations, so I did this ending because it is all mysterious. But this works better. And another odd aside? I could not find a single blog post where Balkin even uses the word “unprecedented” (other than in passing). I tried. Fascinating. Oh, and honorable mention goes to Linda Greenhouse, who really isn’t that important anymore.