In a post on January 30, 2014, Eugene Volokh writes about Ron Collins’s review of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, co-authored by Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, David Kopel, and Ilya Somin, and edited by Trevor Burris.
He closed the post, noting:
Most of the posts collected in the book are, as readers might recall, skeptical of the act’s constitutionality, but some take the opposite view.
Did anyone else notice that though the book has Volokh’s name in the title, he did not contribute to it. That would make sense, in light of the fact that Eugene barely wrote about Obamacare at all. In fact, by my count, I don’t think Eugene has blogged about Obamacare since late 2009. As I discuss in Unprecedented, Eugene appeared opposite to Randy Barnett at an event at the Heritage Foundation. Eugene took the position that the Affordable Care Act was constitutional, and that Randy’s arguments were without merit.
At the senator’s request, Gaziano invited Hatch to speak at a De- cember 9, 2012, public event at Heritage’s Capitol Hill auditorium. At the time, Gaziano noted that Hatch would “laud the paper in a floor speech he is set to make” later that day. The report would be released on that date, and Barnett would debate prominent UCLA law professor Eugene Volokh. Volokh, who holds mostly conser- vative and libertarian views, had been critical of the challenges to the ACA. Gaziano wanted Volokh because “he was a skeptic” and debating him would “get academic play.” During the event, Volokh would disagree with Barnett’s positions and argue that the mandate was constitutional under existing law.
Eugene wrote one post after the Heritage event. He began:
I much enjoyed Randy’s and my exchange at Heritage today. I’m afraid I don’t have a write-up of my views, and probably won’t;
At some point when writing the book I went through every single Volokh, Balkin, etc. blog post on Obamacare, and I remember making a note on Volokh’s lack of writing. I may have missed one or two, but I’m pretty sure I got them all. I think he may have been the only regular conspirator not to write about NFIB.
Ron Collins made a similar point in his review of the Conspirator’s book.
To add to the constitutional story, Professor Barnett also noted: “And then I had a debate about [the ACA]. I argued that it was unconstitutional. And who did the Heritage Foundation dig up to argue that the law was constitutional? It was none other than Eugene Volokh . . . . I always thought that one of the reasons that we never heard from Eugene during the course of the debate, one way or another, is because he was already on record in this debate in arguing that it was constitutional.”