Review of Unprecedented in The Weekly Standard

December 16th, 2013

bookshelfTerry Eastland, writing in the December 23 edition of the Weekly Standard, offers a review of Unprecedented.

From the opening:

Josh Blackman is an assistant professor of law at the South Texas College of Law and a blogger on legal topics. His politics lean in libertarian and conservative directions, and he admits being “very sympathetic” to the case against the ACA. Indeed, in late 2009, shortly before the law was passed, Blackman was asked to help write a report explaining its constitutional infirmities, a document some legal conservatives hoped to send to Congress. He declined on account of his position at the time as a law clerk to a federal judge. That was the right thing to do. But even if Blackman hadn’t been clerking, he might well have decided not to become involved; for, as he indicates here, he was concerned that a decision striking down the ACA, which President Obama regards as his principal domestic achievement, would be perceived in political terms and thus undermine the notion that the Court is above politics.

Blackman’s sympathy for the constitutional arguments against the ACA, and his concern for judicial restraint in this landmark case, help shape a sure-footed narrative that benefits from his reporting. Blackman interviewed more than 100 people, among them attorneys who represented the challenging parties and federal lawyers who defended the ACA, as well as journalists who covered the case.

And the conclusion:

Blackman sees, in the constitutional challenge to Obamacare, certain advances for limited government. Congress now may not invoke the commerce clause to “simply force a person to buy a product.” And if Congress turns to the tax power to accomplish such a goal, “it must take the political consequences of calling it a tax,” as Obama refused to do when the law was being debated in Congress, changing his tune only after the lawsuits were filed. Moreover, “for the first time ever limits have been placed on Congress’s powers to condition its monetary grants to the states.”

Blackman also sees shifts in our “constitutional culture.” They include a Supreme Court more willing “to police the outer bounds of the federal government’s power, in terms of both federalism and enumerated powers”; judges, on pain of being accused of activism, more willing to “strike down laws by enforcing the entire Constitution,” including its structural provisions; and a federal government on notice that it “will need to justify further expansions of federal power.”

It will take time to determine whether these actually are doctrinal advances and cultural shifts. Subtract a judicial conservative from the Court, and add, from the hand of Barack Obama (who has three years left in office), a judicial liberal, and the outlook for limited government won’t be as good.