Hi everyone. Many thanks to Eugene, Randy, and everyone else at VC for giving me the keys to the Conspiracy to talk about my new book, Unprecedented: The Constitutional Challenge to Obamacare. Unprecedented will officially be released on September 10, but it is already shipping from Amazon. You can read some of the blurbs from Larry Tribe, Jack Balkin, and others here.
In my guest-blogging stint, I will try to place NFIB v. Sebelius in the larger context of the three-year constitutional and political battle against Obamacare, and discuss several facts you (probably) did not know about the case. For this book, I conducted over 100 interviews with all of the major players in this case, including high-ranking DOJ officials and those who argued the case on behalf of the challengers.
First, I will explore why the government argued the case the way they did. I will counter the conventional narrative, and show that some of the government’s perceived missteps were in fact intentional. Though many of the Solicitor General’s gambles did not pay off (including his commerce clause strategy), his most important decision of how to portray the individual mandate as a penalty on not having health insurance, and related representation that there were no collateral consequences for failing to pay the penalty, proved pivotal. This strategy was met by resistance within the Obama Administration, and the Solicitor General had to fight to assert this position in Court. And it was this formulation of the mandate that Chief Justice Roberts adopted, saving the Affordable Care Act.
Second, I will focus on how the challenge to Obamacare developed so far and so fast. Long-time readers of this blog may recall that hazy period of the summer and fall of 2009, when few outside the Volokh Conspiracy and Federalist Society circles thought that the mandate was unconstitutional. Two years later, with the support of the Tea Party, this popular constitutional movement, in the words of Jack Balkin, journeyed from “off the wall” to “on the wall.” I’ll also retell the beginning of Randy Barnett’s role in this case in November 2009 at the Federalist Society Lawyer’s Convention at the Mayflower. At the time, Randy said, “You know, I really haven’t give it much thought.”
Third, I will discuss how many tried to influence the Supreme Court’s decision beyond the briefs and oral argument. We would later learn that the chief justice’s vote was in play and that, at some point, he changed his mind in favor of finding that the ACA was constitutional. However, many in Washington knew this fact much earlier and acted accordingly, trying to solidify the wavering Chief.
Plus, a few other topics involving the history of the individual mandate (hint, Republicans supported it until Democrats did), and some other fun stuff that was lost in the shuffle. Thanks for reading!
Cross-Posted at Volokh.com