Politics

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

Jamie Weinstein Senior Writer
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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.

You tell of how a group of Federalist Society lawyers met in 2009 to challenge Obamacare. Why was it initially seen as such a long shot by not just the political establishment, but the legal establishment as well?

In 2009, this case wasn’t just a long-shot. Even I thought it was a nonstarter. At the time I wrote on my blog that “The Justices are not touching this with a ten-foot pole.” I could not have been more wrong. Historically, the Supreme Court has been very deferential to laws passed by Congress regulating interstate commerce, and has only struck down laws where Congress made no connection between the prohibited activity and commerce between the states (such as carrying a firearm in a school zone). But in a 2003 case argued by Randy Barnett, the Court — including Justices Scalia and Kennedy — upheld Congress’s ability to regulate marijuana grown on a farm, that never crosses state lines. The idea that regulating the multi-billion dollar health-care industry was not commerce was a laugher. Nearly everyone rejected the idea, and laughed at Barnett.

Yet, the strategy developed by Barnett and others turned that norm on its head. With the individual mandate, which forces people to buy health insurance, Congress isn’t regulating commercial activity; it is regulating commercial inactivity. Congress was forcing people into the stream of commerce. This had never been done before. With that, a long-shot argument journeyed from “off the wall” to “on the wall.”

The health-care law wasn’t signed into law until March 2010. How were people able to begin devising schemes to overturn it before they even knew what the bill would look like?

I remember raising that question in November 2009 at the Mayflower, a month before the Senate bill was even released! Though the final bill was not passed by the House until March 2010, the individual mandate, the linchpin of the Affordable Care Act — and the locus of the constitutional attack — had been around for nearly two decades.

Interestingly enough, it was another provision of Obamacare that attracted the attention of the two-dozen states that challenged the law. Obamacare forced the states to offer Medicaid insurance to millions of new people, who were above the poverty line. The federal government would pay most of the additional costs, though many states feared that this law would force them deep into debt. The notion that the federal government was coercing the states with this law urged Florida, and others to get involved in the litigation, well before it even passed the Senate on December 24, 2009 (yes they voted on Christmas Eve for the first time in a century).

What is the most surprising fact or story readers will discover reading the book?

What will probably come as the biggest surprise is the perspective we know the least amount — the government’s side of the case. In preparation for this book, I interviewed several high-ranking Justice Department officials to learn their perspective of the case. Contrary to public perception, the solicitor general, who argued the case for the government at the Supreme Court, did not mess up nearly as bad as many criticized him for. The solicitor general took several gambles in his strategy, departing from the strategy of his predecessors, many of which did not pay off. But his most important decision, of how to portray the individual mandate as a penalty on not having health insurance, proved pivotal. This strategy proved very unpopular within the Obama administration, and the solicitor general had to fight to assert this position in Court. And it was this formulation of Obamacare that Chief Justice Roberts adopted, saving the Affordable Care Act.

What surprised you the most about the Obamacare ruling?

Of course the big surprise was the vote of Chief Justice Roberts to save Obamacare. But what was even more surprising is how the constitutional argument evolved between 2009 and 2012. Over those three years, I watched in awe as this case rapidly evolved and developed in real time. I marveled at how quickly the constitutional arguments formed. I was stunned at how rapidly the tea party, and later the Republican Party, coalesced around this constitutional movement. What made the evolution of NFIB v. Sebelius so unprecedented, at least as far as constitutional litigation goes, is the seamless union at all levels of government and the populace of the theories and the movement. The political and social climate in which this case came of age created a veritable perfect storm for this challenge. And it almost worked.

You write that determining who won the constitutional challenge is “complicated.” How so?

It’s complicated on a few levels. 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. Though the ultimate outcome saved the law, the opinions in NFIB set important precedents for future constitutional attacks.

Further, I think this constitutional challenge served as an important litmus test for the dedication of the American populace to the Constitution. The constitutional challenge to Obamacare was not simply a lawsuit against a law. It represented a three-year long constitutional social movement that embodied a growing sentiment among Americans against what is viewed as a sprawling Leviathan of the federal government. Whether we attribute this support to the tea party, or other groups, going forward I think politicians must recognize this strong undercurrent is laying dormant, and attempts to go too far with federal power may reawaken this sleeping giant.

Is there any legal avenue left to pursue that could weaken or bring down Obamacare?

There are a few legal challenges remaining against Obamacare.

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.

Despite efforts to defund or stop Obamacare now, the time to stop this law was in 2008. Or 2010. Or 2012. 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.

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