Unprecedented was released just about 1 year ago today. Since then, I have been thinking about writing a sequel. Over the past two months, I’ve more or less focused on the narrative of the next book, which I tentatively codenamed Unraveled. Unprecedented took us from 2009-2012. For Unraveled, I wanted to tell the story of the years 2013-2016 through the lens of the Affordable Care Act, using Hobby Lobby, Halbig, and the Boehner law suit as the guiding posts. The difficult of writing a book about things that haven’t happened yet, is we don’t know what happened.
When I started writing Unprecedented, I anticipated the Court would uphold or strike down the mandate on a 5-4 vote, with Justice Kennedy somewhere in the middle. The Chief’s opinion sure threw me for a loop, and I had to rewrite significant portions of the ending. So I’m used to adjusting the storyline along the way.
This morning, with the grant of rehearing en banc in Halbig, another chapter opened up in this not-yet-finished book (literally and figuratively). Between now, and arguments in December, the D.C. Circuit will bask in its brightest spotlight, perhaps of all time. Some may even say that the glow will be nuclear. With that attention, there will be political pontificating, pundit pressuring, and other intrigues.
This will affect the timeline of what happens. Even if the D.C. Circuit bangs out an en banc opinion in the spring of 2015, the cert petition probably won’t get to the Justices until the long conference of 2015. At that point, there may not even be a circuit split anymore (though there is a 5th Circuit case lurking in the background that people seem to have forgotten about). This would put a potential decision in June 2016, four months before a presidential election. That brings us right back to the political dynamic of NFIB. Also, it would put Halbig in the same time frame as the Boehner law suit, assuming it follows a similar trajectory of NFIB.
Putting these day-to-day events in long-term perspective is difficult, but it’s something I work on.