New Books on the Obamacare Case

A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.

I. Josh Blackman, Unprecedented.

For readers who want a blow-by-blow account of the litigation and its history, you can’t beat Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Blackman – a law professor at South Texas College of Law and prominent legal blogger -interviewed over 100 participants in the case on both sides, and he does a great job of explaining each side’s legal, political, and public relations strategy. The book also does a good job of presenting most of the key legal arguments in a form accessible to nonexperts.

I do have some quibbles with the book. For example, I think that Blackman pays too little attention to the Necessary and Proper Clause issues in the case, which scholars as varied as Andrew Koppelman (discussed below), co-blogger Orin Kerr, and myself all believed was the federal government’s strongest argument. Chief Justice Roberts’ conclusion that the individual mandate was not “proper,” even if it was “necessary” may be one of the most significant aspects of the Supreme Court’s decision. In addition, while Blackman’s account is a useful corrective to claims that Solicitor General Donald Verrilli badly botched the case for the government, I think he goes too far in portraying him as a brilliant legal strategist who foresaw early on that the mandate would ultimately be saved by the argument that it is a tax. If Verrilli had really been so clairvoyant, he would not have relegated this argument to just a few pages near the end of the government’s brief. Moreover, the SG’s office did seriously mishandle the Necessary and Proper argument by basically ignoring the claim that the mandate was not “proper,” even though this argument was a central element of the plaintiffs’ position from early on. Overall, the federal government’s legal strategy was better than some critics claimed, but not quite as good as Blackman suggests.

II. Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform

Northwestern University Law Professor Andrew Koppelman’s The Tough Luck Constitution and the Assault on Health Care Reform is a well-argued defense of the constitutionality of the Affordable Care Act. It brings together most of the best arguments for the federal government’s position previously developed by Koppelman himself and other scholars. The strength of the book is the way Koppelman weaves these arguments into a coherent whole and – most of the time – pays careful attention to counterarguments. I don’t agree with most of Koppelman’s analysis, and I particularly think that his attempt to rebut the “proper” argument fails. I also think that he is unpersuasive in rejecting claims that the government’s position in the case leads to a dangerous slippery slope. But he makes his case well, and anyone interested in the issue will profit from grappling with his arguments.

Unfortunately, the book has two flaws that unnecessarily detract from its strengths. First, Koppelman repeatedly argues that the case against the individual health insurance mandate was based on an ideology of “Tough Luck Libertarianism” under which people who can’t provide health care for themselves are to be denied any kind of government assistance, regardless of consequences. This argument fails both as a description of the actual beliefs of the people who supported the case against the mandate and as an analysis of the logical implications of their position. On the former point, it’s pretty obvious that the most of the lawyers who worked on the case, the 26 state governments and various private plaintiffs who filed it, and the 68% of Americans who wanted the mandate to be struck down did not in fact believe any such thing. For example, most of these people support a variety of government programs subsidizing health care for the poor, even if not on the same scale as left-liberals would want. It’s possible, of course, that all these people supported the case against the mandate without understanding its “tough luck libertarian” logical implications. But it’s fairly clear that, even if the plaintiffs had prevailed on every issue, the federal and state governments would still have plenty of options for subsidizing health care for the poor. Most clearly, they could still do so by directly providing them with funds to purchase health insurance or medical services, the constitutionality of which was not even remotely implicated by any of the arguments advanced in the case.

Koppelman himself concedes that “almost no one is a serious Tough Luck Libertarian” (which is actually a slight overstatement). He claims, therefore, that anyone who isn’t one but still makes liberty-based arguments against Obamacare must either be opportunistic or intellectually inconsistent. In Koppelman’s view, most of those who supported the case against Obamacare fall into one or both categories. But one can believe that there is a liberty-based presumption against redistribution that can be overridden in particular circumstances if there is a sufficiently severe need that cannot be met any other way, and that Obamacare flunked this test. Koppelman’s all-or-nothing interpretation of libertarian objections to redistribution is equivalent to saying that anyone who believes that freedom of speech is subject to any limitations at all is inconsistent if he ever makes free speech-based arguments against any kind of censorship. In any event, the constitutional case against Obamacare does not rest on any particular theory of the amount of redistribution that government should engage in. It rests, rather, on a theory of the scope of federal power under the Constitution. One can consistently argue that the federal government lacks an unlimited power to impose mandates on individuals and spending conditions on state governments, while also believing that it can and should redistribute wealth to the poor in a wide range of other ways.

The second and closely related flaw in Koppelman’s book is the insistence that Obamacare was a major improvement in the health care system, and that its invalidation would have had terrible real-world effects. There is an intellectually serious case for these propositions. But there are also many economists and other experts who believe the opposite: that the individual mandate was unnecessary, and that Obamacare is going to make the health care system more costly and inefficient without significantly improving health outcomes, and that the way to improve health care is by reducing government involvement in the system rather than increase it. Koppelman’s engagement with these counterarguments is largely superficial. He would have done better to either address them in greater depth or simply sidestep the issue of Obamacare’s effects entirely by limiting himself to the claim that it should have been resolved by the political process (as he does in fact contend elsewhere in the book). I suspect Koppelman is so insistent on this point because it allows him to argue that a decision against Obamacare would necessarily lead to disaster, as opposed to merely striking down a policy that some experts believed to be highly beneficial, while others believed it to be harmful. Once we recognize that there is room for legitimate expert disagreement over the merits of Obamacare, then Koppelman’s “tough luck” thesis becomes little different from similar arguments that can be advanced against almost any decision enforcing constitutional limits on government power. For example, critics of judicial review of wartime executive action argue that it will cripple our ability to prevent terrorist attacks. Similarly, critics of judicial enforcement of criminal defendants’ rights claim that it increases crime, critics of judicial decisions protecting gay marriage argue that it will lead to the collapse of the family, and so on.

III. Nathaniel Persily, et al, eds. The Health Care Case and Randy Barnett, et al. A Conspiracy Against Obamacare.

Perhaps the most wide-ranging book about the case is The Health Care Case: The Supreme Court’s Decision and Its Implications, edited by Nathaniel Persily, Gillian Metzger, and Trevor Morrison. It includes contributions on a variety of aspects of the case by numerous legal scholars and commentators on both sides of the issue, including the VC-ers Randy Barnett, Jonathan Adler, and myself. Other contributors include Jack Balkin, Andrew Koppelman, Richard Epstein, Neil Siegel, and Linda Greenhouse, among others. Whatever you think about my contribution, which focuses on the issue of whether the individual mandate was “proper,” there is a lot of interesting material here on both the law and policy of Obamacare.

Finally, we have the Volokh Conspiracy’s own A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, a collection of the most important VC posts on all aspects of the Obamacare litigation, plus some of our other writings on the case, including six new essays reflecting on the historical significance of the decision and the role of the VC and the blogosphere generally in influencing the legal arguments and public debate. The Obamacare case was the first major Supreme Court decision in which the blogosphere played a significant role in developing the legal arguments and influencing public and elite opinion. It probably won’t be the last. The book also includes a foreword by Paul Clement, the famous lawyer who represented the 26 states and other plaintiffs challenging the law in the Supreme Court, and an introduction and other helpful material by our editor Trevor Burrus. Longtime Volokh Conspiracy readers may be interested to know that this is the first book to include contributions by six different VC bloggers: Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, David Kopel, and myself. Obviously, I am too much involved with this book to give an objective assessment of its strengths and weaknesses. But I hope readers interested in the health care case and constitutional federalism more generally, will check it out.

We are still too close in time to the health care decision to put it in proper historical perspective. The truly definitive book about the case (if there ever is one) will probably be written years from now, after more of the dust has settled. In the meantime, each of these four books makes a useful contribution to the debate over the issue.

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