Excerpt from My Concluding Essay in A Conspiracy Against Obamacare

Today is the publication date for A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, a book I coauthored with VC co-bloggers Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, and David Kopel. The book compiles our most important VC posts on the Obamacare case and its aftermath, as well as some of our other writings on the subject. It also includes new retrospective essays on the case by each of the six coauthors. Several of us were extensively involved in developing the legal arguments against Obamacare, especially Randy Barnett.

Here is an excerpt from my concluding essay, which discusses the significance of the Supreme Court’s decision, and also the role of the VC and the blogosphere generally in influencing public and elite debate over the case. This excerpt addresses the former issue. Tommorrow, I will post an excerpt from the essay that focuses on the latter:

While the long-term effect of the ruling is difficult to predict, it is clear that opponents of the individual mandate won some important legal ground, despite the painful setback of having the mandate upheld as a “tax.” More fundamentally, the deep division on the Court suggests that the constitutional scope of federal power will continue to be a hotly contested issue….

The most immediate result of NFIB v. Sebelius is that the Affordable Care Act survived largely intact. Although the Court transformed the individual mandate into a “tax,” there will probably be no more than minor effects on the operation of the mandate in practice. The Court’s decision to strike down the mandatory expansion of Medicaid was an important victory for federalism. But many states have already accepted the expansion voluntarily and others may do so in the future. The Medicaid ruling impedes the implementation of Obamacare, but surely does not prevent it completely.

But those who supported the legal case against the mandate also got a lot out of the Court’s ruling. Indeed, they prevailed on almost all of the major legal arguments. They came as close to winning the case as they possibly could without actually prevailing all the way. In his decisive swing vote opinion, Chief Justice John Roberts endorsed the plaintiffs’ argument that the individual mandate was outside the scope of Congress’ powers under the Commerce Clause and Necessary and Proper Clause. Particularly gratifying to me was his conclusion that the “[e]ven if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.” The argument that the mandate was improper even if “necessary” was the central focus of the amicus brief I had written on behalf of the Washington Legal Foundation and a group of constitutional law scholars, though I certainly do not mean to suggest that this brief was what persuaded the five justices who ruled that the mandate was “improper….”

Perhaps the most important legacy of NFIB is its refutation of claims that there is a broad expert consensus that the Constitution gives Congress the power to enact virtually any regulation that has some substantial effect on the economy. This belief underlay many of the early predictions that the individual mandate case would be a slam dunk for the government.

In reality, the Supreme Court’s conservative justices had not accepted that theory for a long time. In the academic world, it has come under from challenge from two generations of conservative and libertarian federalism scholars, including Steven Calabresi, Lynn Baker, Gary Lawson, and the Volokh Conspiracy’s own Randy Barnett, among others. This lack of consensus long predated the legal battle over Obamacare. But NFIB v. Sebelius drove the reality home to many who did not see it before…..

The lack of consensus on judicial review of federalism is not entirely good news for those of us who support strong enforcement of constitutional limits on federal power. In practice, it is difficult to ensure consistent judicial enforcement of any part of the Constitution without at least some substantial bipartisan support…..

Still, we should remember the progress made by advocates of judicial review of federalism over the last several decades. In the 1970s, their position had very little support among jurists and almost none among elite legal scholars and other prominent commentators on constitutional issues…. The change from that era to the present is striking.

UPDATE: Apparently, the book is temporarily out of stock at Amazon (I linked to the book’s Amazon site above). I am told it should be available there soon. In the meantime, for those who may be interested, it is also available at the same price at Barnes and Noble.