Archive | Unprecedented

Signing Off and Some Parting Thoughts

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 Unprecedented road show. Tuesday at noon I will be at George Washington Law School in the Moot Court Room, where I expect to finally broker a complete agreement with Orin Kerr about the proper role of the courts. (We may need Vladimir Putin to help iron out the kinks.) Wednesday at noon I will be at American University, and Monday I will be at Yale Law School. My schedule still has some dates for the Spring if any other schools are interested.

In parting, a few plugs. First, the Harlan Institute, a non-profit I run, has partnered with The Constitutional Sources Project (ConSource) to host the second annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on National Labor Relations Board v. Noel Canning Corporation. The grand prize for the winning team is a trip to Washington, D.C. to attend ConSource’s Constitution Day celebration in September 2014. Today, I had the honor of meeting the two winners from the 2013 competition who attended Justice Scalia’s lecture. Interested high school teachers and students can sign up for the competition here.

Second, the 5th season of kicks off on the first Monday in [...]

Continue Reading 0

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 enforce a libertarian vision of the Constitution.

I think this argument neglects an important attribute of the Roberts Court that was on fully display in NFIB, as well as other recent cases that focus on the importance of structural protections of the Constitution to protect individual liberty.  This isn’t just a conservative thing. Similar logic that underpins cases like Shelby County, and the Medicaid Expansion portion of NFIB, focusing on the importance of states protecting certain dignity and liberty interests of its people was utilized in Lawrence and Windsor (Randy Barnett alluded to this phenomenon in this post). And the common thread in all of these doctrines is Justice Kennedy. His interwoven views on federalism and individual liberty have reached results as wide-ranging as voting to strike down, on consecutive days, part of the Voting RIghts Act and the Defense of Marriage Act (the only Justice to do both).

I am working on an article about Justice Kennedy’s jurisprudence stretching from Casey to Romer to Lawrence to NFIB to Windsor. I argue that the consistent trend in these cases is (1) eschewing traditional notions of scrutiny (both in terms of suspect classes and fundamental rights), (2) merging of due process (conduct) and equal protection (status), and (3) looking to the states through a reverse-federalism lens, as bulwarks of freedom, to bolster federal constitutional rights. When viewed in this light, the importance of constitutional structure to Justice Kennedy, and by (unavoidable extension) on the Roberts [...]

Continue Reading 0

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 Roberts Court, Epps observes:

But what was “unprecedented” in Sebelius was not so much the mandate as the vision of the Constitution put forth by the “tough luck” crowd. Thus, as Tushnet suggests, it shouldn’t be surprising that it did not achieve total victory. To be sure, Roberts is thoroughly conservative. But his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama. Still counted among the right’s heroes in that decade was the 18th-century philosopher Edmund Burke, who did not believe in untrammeled “liberty.” To Burke, “the restraints on men, as well as their liberties, are to be reckoned among their rights.” …

“John Roberts’s constitutional philosophy was shaped before and during the Reagan years,” Tushnet argues, “and there’s no reason to think that he’s a partisan hack whose views change as new leaders come to the fore in the party.” Still, the new tough-luck libertarian philosophy resonates in the Court. Witness Roberts’s use of the “inactivity” argument to void the mandate under the commerce power; witness the four votes to void the whole ACA. Even a swing justice like Anthony Kennedy—like the younger and stunningly rigid Samuel Alito—was willing to adopt the tough-luck argument in its entirety. As Simon Lazarus recently pointed out in The New Republic, radical libertarian ideas are gaining ground in amicus briefs and lower-court opinions and finding their way into the minds of the conservative

Continue Reading 0

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 this happen? The answer, contrary to what many may argue, is not just politics or ideology. Sure that was a big, big part of it, but that was not enough by itself. There are lots of crazy constitutional ideas that go nowhere fast, and are never validated by courts.  Something bigger was going on in the American collective consciousness, what is commonly referred to as popular constitutionalism. The challenge to the Affordable Care Act teed up the all-important question: Who would decide the meaning of the Constitution? Professor Larry Kramer has written that “Americans in the past [have] always c[o]me to the same conclusion: that it was their right, and their responsibility, as republican citizens to say finally what the Constitution means.”

On June 4, 2012 (three weeks before NFIB was decided), Jack Balkin penned a prescient article in the Atlantic addressing the question of how the challenge to Obamacare went, in his words, from off-the-wall to on-the-wall. Balkin explored this theme by looking at five critical groups in our society who made the case: “intellectuals, social movements, political parties, media, and the courts.”

It’s no coincidence that Balkin lists the intellectuals first. Political parties and social movements can only organize around ideas that are grounded in constitutional doctrine, that make sense, and can be easily adopted by the people (most visibly through the Tea Party). How the arguments went from being taken seriously by a small cadre of libertarian scholars to garnering [...]

Continue Reading 0

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, Brewer decided to veto every bill until the state legislature voted to opt in. Ultimately, the Arizona legislature gave Brewer what she sought, and accepted the expansion.

This sudden reversal in Arizona is all the more unexpected in light of the fact that it was originally Brewer’s opposition to Obamacare that may have back the government into a corner where it could not win on the Medicaid issue in NFIB v. Sebelius. As I discuss in Unprecedented, it was a letter that Brewer sent to HHS in March 2010 asking to opt-out of part of the expansion which helped seed the government’s defeat.

Five days before the Affordable Care Act was signed into law Jan Brewer notified the Department of Health and Human Services that it intended to terminate its participation under the KidsCare program. This program, commonly known as CHIP, was one aspect of the Affordable Care Act’s expansion that provided additional funding to the states to provide health insurance for children.

One week after the Affordable Care Act became law, HHS responded with an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a warning: “We want you to be aware that it appears that your request . . . would result in a loss of [all] Medicaid funding for Arizona.” If Arizona opted out of CHIP, it [...]

Continue Reading 0

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 have become the most effective opponents of Obamacare and federal overreach in general. Two excellent books, one published earlier this year and the other just out, give detailed accounts of the states’ fight to defeat Obamacare and preserve the Constitution’s limits on federal power.

Both Virginia Attorney General Ken Cuccinelli, a key leader of the state fight, and South Texas College of Law professor Josh Blackman argue that the majority opinion written by Mr. Roberts was so finely balanced as to render the act ultimately unworkable.

Plus a mention of Randy’s work for NFIB:

Georgetown professor Randy Barnett, whose Jones Day team of lawyers represented the National Federation of Independent Business in its lawsuit, argues in the foreword to the Blackman book that the Roberts rulings against the coercion of the states and the original claims for the mandate—before it was redefined as a tax—were in fact big victories for the Constitution’s doctrine of limited federal powers.

Cross-Posted at [...]

Continue Reading 0

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 to take the case make their pitch and try to persuade the client that their firm is the best suitor.

At AboveTheLaw,  I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.

Cross-Posted at [...]

Continue Reading 0

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 talking about the mandate, writing about the legal arguments against it, and spreading the constitutional movement against Obamacare. The New York Times accurately summed up Randy’s remarkable contributions to this case. But how did Randy get started?

In Part II of Unprecedented, which is now also available on Kindle, I discuss the “Mayflower Compact,” where the official challenge to Obamacare unofficially kicked off. Each November, the Federalist Society hosts its biggest event of the year, the National Lawyers Convention, at the Mayflower Hotel.  The convention draws prominent academics, politicians, and judges from across the ideological spectrum to discuss and debate the key legal issues of the day. As is often the case at such conventions, some panels are more interesting than others. During lulls, attendants frequently recess to the grand hallway in the Mayflower to catch up with old friends, argue about the most recent Supreme Court case, or brainstorm and strategize. November 12, 2009, was just such a day. At 10:15 am, a panel began on “Bailouts and Government as Insurer of Last Resort.” Though certainly an interesting topic, a number of already-fatigued Federalists made their way out into the cavernous hallway. I joined them.

Todd Gaziano, formerly the director of the Center for Legal and Judicial Studies at the Heritage Foundation—the same Heritage Foundation that had first advanced the individual mandate two decades earlier—was talking about the pending health care bill along with Nelson Lund, my former professor at

Continue Reading 0

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 from alcohol. Or, at least a drinking game. The leading intellectual leader of the challenge was Georgetown Law Professor Randy Barnett (author of the Foreword of my book). The New York Times dubbed Barnett the “intellectual godfather” of this constitutional movement. Randy’s main argument as to why Obamacare violated the Constitution was that it was unprecedented. Congress had never before passed a law that forced people to purchase a commercial product. In his dozens of talks, articles, and interviews about the law, Barnett would say over, and over, and over again that the law was unprecedented. At one event, I joked on my blog that we should create a Randy Barnett drinking game – take a shot every time he says unprecedented. Barnett laughed, but he had a realization. The phrase unprecedented was very powerful, and persuasive. Barnett wrote that my “‘joshing’ spurred [him] to make ‘unprecedented’ the one-word centerpiece of [the] strategy in the courts and in the court of public opinion.” When picking titles, this was the single word that summed up the entire case. Unprecedented.

I’ll have another post shortly about how Randy joined the case, following a fortuitous meeting at the Mayflower in November 2009.

Cross-Posted at [...]

Continue Reading 0

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 the case. And this was no accident! At every juncture, she walled herself off as SG, so she would have no involvement with the Affordable Care Act.

But the most important question that no one asked her, is why did she have nothing to do with the most significant case of the Obama presidency.

You can go through the FOIA’d emails yourself for clues. Here are a few highlights.

As early as January 8, 2010, two months before the ACA cleared the House, and three months before Justice Stevens announced his retirement, Kagan, a front-runner for the next vacancy on the Supreme Court, was already sectioning herself off from what would become the most important case of the Roberts Court.

Brian Hauck, a senior counsel at the Justice Department, emailed Deputy Solicitor General Neal Katyal about putting together a team to defend the inevitable suits against Obamacare. Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena [Kagan] and designate someone.”

Katyal forwarded that message to his boss, Solicitor General Elena Kagan, and wrote, “I am happy to do this if you are ok with it . . . or both of us.” Three minutes later, Kagan replied with four words that would characterize her approach to ACA: “You should do it.” The future justice was already sectioning herself off from what would become the most important case of the Roberts Court. Neal Katyal wrote back to Hauck,  “Elena would

Continue Reading 0

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.

  1. 9/9/13 at 12:00 p.m – Columbia Law School Federalist Society Chapter, with commentary by Professor David Pozen (Jerome Greene Hall, Room 105).
  2. 9/9/13 at 4:00 p.m. – New York University School of Law Federalist Society Chapter, with an introduction by Professor Barry Friedman (NYU Vanderbilt Hall – Room 218, 40 Washington Sq. South).
  3. 9/10/13 at 12:30 p.m. – Rutgers School of Law-Newark Federalist Society Chapter (Room TBD)
  4. 9/13/13 at 12:00 p.m. – The Cato Institute, with commentary by Ilya ShapiroJeffrey Rosen, and Randy Barnett  (RSVP here).
  5. 9/16/13 at 6:00 p.m. – The Georgetown Supreme Court InstituteRandy BarnettMichael CarvinGregory KatsasErin MurphyAlan MorrisonPaul Smith, and I will provide a look back at the litigation in NFIB v. Sebelius. Adam Liptak will moderate. (Hotung Building Room 2003 RSVP here).
  6. 9/17/13 at 12:00 p.m. – George Washington University School of Law Federalist Society Chapter, co-sponsored by the Benjamin Rush Institute (Room TBD)
  7. 9/18/13 at 12:00 p.m. – American University Washington College of Law Federalist Society Chapter, with commentary by Professor Stephen Vladeck (Room TBD)
  8. 9/23/13 at 12:00 p.m. –  Yale Law School Federalist Society Chapter, with commentary by Professor Jack Balkin (Room 127). A book signing will follow at the New Haven Barnes & Noble at 2:00 p.m.
  9. 10/28/13 at 12:00 p.m. – University of Pennsylvania School of Law Federalist Society Chapter.
  10. 11/4/13 at 12:00 p.m. – University of Chicago Law School Federalist
Continue Reading 0

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 appeals what the government’s limiting principle was, Acting Solicitor General Neal Katyal offered two “rock-solid” limiting principles:  “We agree completely with Lopez and Morrison. There are two rock-solid limits on [the] ability of [the] federal government to act on commerce power. First, it can’t act in attenuated ways, [as in] Morrison. Second, it can’t infringe on areas of traditional state responsibility. There is a distinction between what is truly local and truly national. This is a market that is truly national in scope.” Katyal repeated these two principles to the 4th, 6th, and 11th Circuits.

The attorneys in the Solicitor General’s office were “under no illusion from the outset that the Commerce Clause argument was not going to be challenging.” Internally, the government conceded that there “wasn’t anything quite like the individual mandate.” Even they knew it was unprecedented.

After “careful consideration,” the government determined that the two principles advanced in the lower court were  “ultimately [] not going to be helpful as a limiting principle.”  Lopez and Morrison “wouldn’t seem robust enough [as] a limiting principle under these circumstances.” Deeming the principles in Lopez and Morrison too “capacious,” the Solicitor General’s office came to the conclusion that those cases “were not going to be enough, and they needed to give a narrower answer.” If Lopez and Morrison represented the outer bounds of government power, the government could impose any economic mandate that addressed a national problem. If the government drew the line

Continue Reading 0

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 anyone of the merits of the competing arguments. You have all read enough about why the mandate and expansion are, or are not constitutional. My goal is to show how the advocates framed the issue.

First I will talk about the Anti-Injunction Act, which was argued on the first day of oral arguments. Next, I will talk about the commerce clause/taxing power positions, and the “saving construction, ” which were argued on the second day. Third, I will discuss the Medicaid expansion, which was argued on the final day.

Although the Anti-Injunction act was the least interesting aspect of the ACA, and received the least amount of attention, in the end it proved to be critical to the outcome of NFIB. A brief refresher. The Anti-Injunction (grossly oversimplified) prevents a person from challenging a tax in court until it is enforced. The proper route is to pay the tax, and later seek a refund. In the early days of the government’s defense of the Affordable Care Act, the United States argued that the individual mandate’s penalty was a tax, and therefore it could not yet be challenged in court because it had not yet been enforced. The lower courts consistently rejected this argument, finding that the individual mandate was not a tax, and thus not subject to the AIA.

At the courts of appeals, the government changed course, and argued that the AIA did not apply. This decision was part-legal, and part-political. For [...]

Continue Reading 0

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, and others here.

Optimized-Final-CoverIn my guest-blogging stint, I will try to place NFIB v. Sebelius in the larger context of the three-year constitutional and political battle against Obamacare, and discuss several facts you (probably) did not know about the case. For this book, I conducted over 100 interviews with all of the major players in this case, including high-ranking DOJ officials and those who argued the case on behalf of the challengers.

First, I will explore why  the government argued the case the way they did. I will counter the conventional narrative, and show that some of the government’s perceived missteps were in fact intentional. Though many of the Solicitor General’s gambles did not pay off (including his commerce clause strategy), his most important decision of how to portray the individual mandate as a penalty on not having health insurance, and related representation that there were no collateral consequences for failing to pay the penalty, proved pivotal. This strategy was met by resistance within the Obama Administration, and the Solicitor General had to fight to assert this position in Court. And it was this formulation of the mandate that Chief Justice Roberts adopted, saving the Affordable Care Act.

Second, I will focus on how the challenge to Obamacare developed so far and so fast. Long-time readers of this blog may recall that hazy period of the summer and fall of 2009, when few outside the Volokh Conspiracy and [...]

Continue Reading 0