My many thanks to Eugene for allowing me a guest stay here at the Volokh Conspiracy to blog about Unprecedented. I attended law school at George Mason, and often felt like I had much of the VC as my faculty. It was an honor to blog among them. There’s still time to hop onto the […]
Author Archive | Josh Blackman, guest-blogging
Constitutional Structure on the Roberts Court
During the debates over the Affordable Care Act, a common criticism of the challengers was that the commerce-clause based attack was really a liberty-based challenge in structural clothes. Legal positions, the argument went, which were ostensibly framed in terms of Congress’s abilities to regulate interstate commerce, or to tax and spend, were really efforts to […]
Epps on Reagan v. The Libertarians on the Supreme Court
Garrett Epps has a fascinating read in the American Prospect on the Roberts Court, that explores the dichotomy among conservatives on the Court: between those who came of age during the Reagan Administration (dedicated to judicial restraint), and those who have embraced the modern era (with a stronger focus on judicial engagement). Citing Mark Tushnet’s new book on the […]
Popular Constitutionalism and Obamacare: From Off-The-Wall to On-The-Wall
One of the more remarkable aspects of the three-year long constitutional challenge to Obamacare is how the legal arguments against the law unfolded before our eyes in real time–many of them right here on the Volokh Conspiracy. These arguments went from a laugher in 2009 to commanding five votes of the Supreme Court in 2012. How did […]
Obamacare Comes Full Circle in Arizona
One of the first governors to push back against the Medicaid expansion was Arizona Governor Jan Brewer. Brewer vigorously opposed Obamacare for nearly three years. However, after the Court upheld the law, and gave states the option to opt into the Medicaid expansion, Brewer pulled a 180, and supported joining Obamacare. In a bizarre tactic, […]
Wall Street Journal Reviews Unprecedented – “Excellent”
Today the Wall Street Journal reviewed Unprecedented, along with Virginia Attorney General Ken Cuccinelli’s new book, the Last Line of Defense, as part of a discussion of the role of the states in combatting the sprawling federal government. The Journal said the two were “excellent books.” Here is a flavor: Republican governors and attorneys general […]
The Supreme Court ‘Beauty Contest’: A Behind-the-Scenes Look
Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing […]
How Randy Barnett joined the constitutional challenge to Obamacare
Randy Barnett had many critical roles in the constitutional challenge to Obamacare (Disclosure: Barnett wrote the foreword for my book). In one respect, he was a leading constitutional theorists who helped develop the arguments that five Justices ultimately accepted . In another respect, he was a constitutional evangelist, dedicating nearly three years of his life to […]
I am interviewed in the Daily Caller about Unprecedented
Unprecedented officially comes out today. The Daily Caller ran a full-length interview with me about the book, titled “New book takes you behind the scenes of the constitutional challenge to Obamacare“. You may enjoy the story of where the title Unprecedented came from (some of you may know part of it). Like most things in Washington, the title “Unprecedented” came […]
The Question No One Asked at Justice Kagan’s Confirmation Hearing: Why did she wall herself off from the Obamacare Litigation
Nearly everything written about calls for Justice Kagan to recuse in NFIB v. Sebelius focused on whether she had anything to do with the Obamacare litigation while she was serving as Solicitor General. The answer to this question was straightforward. As I discussed in Unprecedented–and based on stuff I couldn’t write–she had absolutely nothing to do with […]
Unprecedented Book Tour
Unprecedented will be officially released on Tuesday, September 10. I will be giving a number of talks about the book, followed by book signings in the New York area and Washington. If you are in the area, I hope to see you there. 9/9/13 at 12:00 p.m – Columbia Law School Federalist Society Chapter, with commentary by Professor David Pozen (Jerome […]
The Strategy in NFIB v. Sebelius, Part II: The Commerce Clause Limiting Principle
In my previous post, I discussed how the government decided to argue that the Anti-Injunction Act was not a barrier to the Court hearing the case in 2012. The Solicitor General’s second big decision, after staying the course with the AIA, was how to frame the commerce clause issue. When asked in the courts of […]
The Strategy in NFIB v. Sebelius, Part I: The Anti-Injunction Act
In a series of posts, I will explore in some detail how the government and the challengers developed their strategies before the Supreme Court in NFIB v. Sebelius. I elaborate on these themes at some length in Chapter V of Unprecedented (“Strategizing for the Supreme Court, p. 159”). Please note that I am not trying to persuade […]
It’s Unprecedented!
Hi everyone. Many thanks to Eugene, Randy, and everyone else at VC for giving me the keys to the Conspiracy to talk about my new book, Unprecedented: The Constitutional Challenge to Obamacare. Unprecedented will officially be released on September 10, but it is already shipping from Amazon. You can read some of the blurbs from Larry Tribe, Jack Balkin, […]