New book takes you behind the scenes of the constitutional challenge to Obamacare

The opportunity to stop Obamacare has largely passed, argues Josh Blackman, author of the new book, “Unprecedented: The Constitutional Challenge to Obamacare.”

“Despite efforts to defund or stop Obamacare now, the time to stop this law was in 2008. Or 2010. Or 2012,” Blackman told The Daily Caller in an interview about his new tome, which tells the inside story of the legal challenge to overturn President Obama’s health-care law.

“There were three elections that could have stopped the law. If the Republicans had one more vote in the Senate in 2009, they could have filibustered the law, and stopped it dead in its tracks. If the GOP had taken over the Senate and the House in 2010, they could have delayed, or perhaps halted implementation of the parts until after the 2012 election. Had Mitt Romney won the presidency in 2012, he could have signed into law a repeal of Obamacare, before it was implemented. But none of those things happened. In the end of this unprecedented journey, Obamacare survived, and we hurtle towards its implementation in the coming months.”

Nonetheless, Blackman, a professor at South Texas College of Law whose friends and colleagues were instrumental actors in the legal fight to overturn Obamacare, says several legal challenges to the law are still on-going.

“There are a few legal challenges remaining against Obamacare,” he said.

“One suit alleges that Obamacare does not permit the federal government to pay out subsidies to people enrolled in the health-care exchanges in states that did not opt into the Medicaid expansion. If this suit is successful, it would halt the Obamacare exchanges in states that are not participating in the expansion. Another suit alleges that because the individual mandate was a tax (as rewritten by the Chief Justice), and because the Constitution requires that all taxes originate in the House, and Obamacare began in the Senate, the law is unconstitutional. If this suit is successful, the mandate would be unconstitutional. Though, a federal judge has already dismissed this suit and it is being appealed.”

Even though the Supreme Court did not overturn President Obama’s health-care law in its 2011 decision, Blackman says determining who actually won the legal battle remains “complicated.”

“It’s complicated on a few levels,” Blackman explained.

“First, it’s not perfectly clear what the Supreme Court held in NFIB v. Sebelius. Five Justices (Roberts, Scalia, Kennedy, Thomas, and Alito) held that the Congress cannot compel people to purchase health insurance under its powers to regulate interstate commerce. Five Justices (Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) held that the individual mandate, if rewritten to place a tax on those who do not have health insurance, was constitutional. So the mandate survived. Seven justices (Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan) held that states could not be forced to accept the Medicaid funding. So the Medicaid expansion survived, in part.”

“Beyond counting the votes in the case, it can be argued that this case represented a shift in constitutional law, and a recommitment of the Roberts Court to the defense of federalism and individual liberty,” he continued. “Though the ultimate outcome saved the law, the opinions in NFIB set important precedents for future constitutional attacks.”

See below TheDC’s extended interview with Blackman about his book, how the constitutional challenge to Obamacare was sparked and much more:

Explain your title, “Unprecedented.”

Like most things in Washington, the title “Unprecedented” came from alcohol. Or, at least a drinking game. The leading intellectual leader of the challenge was Georgetown Law Professor Randy Barnett (author of the Foreword of my book). The New York Times dubbed Barnett the “intellectual godfather” of this constitutional movement. Randy’s main argument as to why Obamacare violated the Constitution was that it was unprecedented. Congress had never before passed a law that forced people to purchase a commercial product. In his dozens of talks, articles, and interviews about the law, Barnett would say over, and over, and over again that the law was unprecedented. At one event, I joked on my blog that we should create a Randy Barnett drinking game — take a shot every time he says unprecedented. Barnett laughed, but he had a realization. The phrase unprecedented was very powerful, and persuasive. Barnett wrote that my “‘joshing’ spurred [him] to make ‘unprecedented’ the one-word centerpiece of [the] strategy in the courts and in the court of public opinion.” When picking titles, this was the single word that summed up the entire case. Unprecedented.