I posted to SSRN a copy of my new article, “Five Lessons from The Health Care Cases,” which will be published in a symposium issue of the Chapman Law Review dedicated to libertarian legal thought following NFIB v. Sebelius.
Here is the abstract:
In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening. This essay, as part of a symposium issue for the Chapman Law Review on libertarian legal thought, takes a step back, and draws five important lessons from The Health Cases.
First and second, we witnessed how conservatives and liberals reversed roles with respect to the propriety of judicial review. Conservatives rallied around the mantle of striking down a massively important, and very technical, democratically enacted piece of legislation. Liberals rediscovered a fealty to judicial restraint, and urged the courts—and indeed preemptively attacked the Justices—to consider what striking down the ACA would do to the Court’s legitimacy. In hindsight, this opportunistic switch speaks volumes about the superficiality of the entire judicial restraint/judicial activism divide.
Third, the reaction of conservative judges to this case revealed a jurisprudential fissure. The new generation of jurists, no longer duty bound by an unmitigated fealty to judicial restraint, are willing to engage the entire Constitution, through the exercise of the powers of judicial review. This fissure also portends future debates about the next republican nominee to the Supreme Court.
Fourth, libertarians, who for decades have sought to restore the original meaning of the Constitution, shied away from that task, and advanced a strategy that would excise the individual mandate alone without disturbing any New Deal-era precedents. The decision not to assert the originalist case for the unconstitutionality of the individual mandate, and to advance a popular constitutionalist argument, have largely gone unrecognized and unappreciated. Both of these choices speaks to the potential limitations of originalism in a world bound by entrenched precedents, and the potential strength of fostering social movements intent on restoring the lost constitution.
This observation leads to the last, and most important lesson—we learned a great deal about how important our Constitution is to we the people. The growing sentiment that the powers of the federal government are in fact constrained, and the New Deal cases may not have definitively resolved these issues—what Larry Solum has referred to as the now “unsettled . . . constitutional gestalt”—may be the most important lesson we can draw from this entire unprecedented experience.
This draft is not final (still needs some works on footnotes and editing), though I welcome all comments.
Update: Larry Solum linked to my article on the Legal Theory Blog and had these comments:
Blackman has excavated much of the discussion about legal strategy from the blogosphere and public speeches. Essential reading for those seeking understand the relationship between legal arguments and politics in the lead up to and aftermath of NFIB v. Sebelius.Download it while its hot!
Thanks! One of these days I should make a parody of Snoop Dogg’s “Drop it like it’s hot” for the Legal Theory Blog.