The Impact of the Volokh Conspiracy on the Obamacare Litigation

Part of my concluding essay in my new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC co-bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel) deals with the impact of the VC and the blogosphere on the case. Here is an excerpt:

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was also considerable public skepticism. Yet no major legal challenge was ever mounted against the stimulus.

Why not? Certainly not because the Republicans were unwilling to try if they thought such an effort could work. The reason is that such challenges were doomed to failure because the legal arguments underpinning them would either lack credibility with legal professionals, require the overruling of a great deal of Supreme Court precedent, or both. By contrast, the legal challenge to Obamacare gained traction precisely because it was backed by serious legal arguments that did not require extensive revision of precedent to prevail.

And that’s precisely where the Volokh Conspiracy came in. As documented elsewhere in this book, VC posts had a significant influence on the development of the legal arguments put forward by the plaintiffs challenging the mandate….

Perhaps the most important role of the blog was breaking down the perception that there was an expert consensus supporting the constitutionality of the mandate. From early on, many defenders of the mandate claimed that virtually all experts on constitutional law agreed that the mandate was obviously constitutional, and that contrary views must be the result of either ignorance or partisan bias.

The Volokh Conspiracy was a crucial factor in countering this meme. By constantly presenting constitutional arguments against Obamacare developed by leading legal scholars, we called into question the initially dominant narrative that the case was an easy slam dunk for the government. People like Randy Barnett, David Kopel, and Jonathan Adler were prominent constitutional federalism scholars, and could not easily be dismissed as mere partisan hacks. The VC also helped highlight anti-mandate arguments developed by other leading scholars such as Gary Lawson and Richard Epstein.

It was never really true that the case against the mandate was “in the view of most legal professionals and academics, simply crazy.” From the very beginning, there was deep disagreement on the subject among experts. But the Volokh Conspiracy played a major role in driving this point home to legal professionals, the media, and the more attentive members of the general public. It was crucial that the VC presented these arguments in a forum that had a large audience among legal reporters, jurists, academics, and other elites. Most commentators who followed the case were at least aware of our arguments, even if they did not agree with them. The blog format also allowed us to react to events and respond to new opposing arguments “in real time,” thereby making it harder for defenders of the mandate to “shape the narrative” without opposition.

I recently posted another excerpt from my concluding essay, which discussed the legal significance of the Court’s decision in NFIB v. Sebelius.

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