On Friday, I will be speaking at a symposium hosted by the St. Thomas Journal of Law & Public Policy. The occasion of the symposium is the 5th Anniversary of NFIB v. Sebelius, and my talk will be titled, The Saving Construction at 5 Years. The Chief’s opinion has not aged well.
It is hard to believe that the decision is only 5 years old, because in fact the case itself was born two years earlier. In the Author’s Note of Unraveled, I explain how my career and the ACA have intertwined.
By fate or design, my young career has tracked the trajectory of the Affordable Care Act. In September 2009, when I served as a law clerk after graduating from law school, I launched a blog to focus on constitutional and other legal issues. On my fourth day of blogging, I covered this new bill called Obamacare, and discussed whether the individual mandate could force someone to buy insurance. In November 2009, I was by chance present at a meeting where the legal strategy to challenge the individual mandate was hatched. In March 2010, I was unceremoniously asked to cut short my visit to the new Capitol Visitor Center; President Obama was about to enter, and give a final rallying call to House Democrats to vote for the Affordable Care Act (ACA). I emerged from the building to thousands of Tea Parties chantings “Kill the Bill.”
After constitutional challenges to Obamacare were filed, my best friends and colleagues served as the attorneys and scholars developing the groundwork to attack the individual mandate. Throughout 2010 and 2011 while clerking, I continued to blog from a distance, based on closely following the case and on insights I gained from key players. In November 2011, shortly after the Supreme Court accepted review of the ACA cases, I was hired as a law professor at the South Texas College of Law in Houston. It was around that time that I decided to write a book about the legal challenges to Obamacare. I didn’t quite know how the case would be resolved, but I knew there was an important story to be preserved for history.
Leading up to the Supreme Court’s June 2012 decision in NFIB v. Sebelius, I assembled the chronology of how the challenge began and how it wound its way through the courts. The only uncertainty was how the book would end. To expedite the publishing process, I wrote two alternate endings: one in which the Supreme Court upheld the mandate on a 5– 4 vote, with Justice Kennedy casting the decisive vote, and another in which the Court invalidated the mandate on a 5– 4 vote, also with Justice Kennedy casting the decisive vote. Needless to say, neither happened, and I had to write the final ending, with the chief justice saving the law. In September 2013, I published my first book, Unprecedented: The Constitutional Challenge to Obamacare. The inexplicable and unexpected ending of NFIB v. Sebelius injected a strong political element into the legal thriller, and made the case unlike any other in modern times. But it also left the story of Obamacare unfinished. Until 2013, I largely remained an interested observer, the Rosencrantz and Guildenstern of Obamacare – there at all the right moments, talking to all the key actors, but not doing anything of actual importance. But since 2013, I have become an active participant.