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UNPRECEDENTED by Josh  Blackman


The Constitutional Challenge to Obamacare

by Josh Blackman

Pub Date: Sept. 13th, 2013
ISBN: 978-1-61039-328-7
Publisher: PublicAffairs

A young legal scholar delivers an impressive blow-by-blow account of the court battle to defeat the Affordable Care Act.

"Unprecedented," writes Blackman (South Texas College of Law) about the president's health care initiative, "a monumental and transformational law" critics derisively branded "Obamacare," a label the president later happily embraced. Unprecedented, too, was the legislative process that enacted it without a single Republican vote, the widespread and swift mobilization of citizens' groups to oppose it, and the legal challenge to overturn it. Blackman provides a helpful legislative history underlying Obamacare's enactment, charting the major parties' shameless shifting of positions on the individual mandate, and he explores the extralegal machinations surrounding the litigation. He focuses, though, on the court duel, the uncommon 26-state coalition opposing the law, the tortuous progress of the health care cases through the lower courts, and the noteworthy three days and over six hours the Supreme Court devoted to oral argument in NFIB v. Sebelius. Employing a theory roundly ridiculed before any litigation began, the plaintiffs argued that neither the Commerce nor the Necessary and Proper Clause permitted the government to require individuals to purchase health care insurance. Remarkably, a majority of the court agreed, but in an opinion worthy of the wily John Marshall, the chief justice found the law constitutional under the government's power to tax. As the implications of John Roberts' controversial opinion play out in the court's future jurisprudence and as the realities of Obamacare's provisions unfold in our daily lives, historians will look to this wild and, yes, unprecedented moment, when legal experts seriously wrangled over whether the federal government could require a citizen to buy broccoli.

With his strong connections among the conservative and libertarian lawyers who mounted the constitutional challenge and his talent for translating arcane legal-speak, Blackman more than capably captures this dramatic constitutional showdown.