The Magazine

Undoing the Damage

The (legal) case against Obamacare.

Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
Widget tooltip
Audio version Single Page Print Larger Text Smaller Text Alerts

The biggest political story in our domestic politics since 2009 has been, as it will be for the foreseeable future, health care. One part of this story is ripe for telling now: the constitutional challenge to the Affordable Care Act (ACA)—also known as Obamacare. That effort, you’ll recall, came in a series of lawsuits that few legal experts thought had much chance of succeeding. But victories in the lower courts led to new appraisals and a growing sense that, in the Supreme Court, the challengers just might win.

President Obama and friends defending the Affordable Care Act, December 3, 2013

President Obama and friends defending the Affordable Care Act, December 3, 2013

pat bencic / up / newscom

As it turned out, the Court’s decision last year in National Federation of Independent Business v. Sebelius was very close, with the ACA barely surviving.

Josh Blackman is an assistant professor of law at the South Texas College of Law and a blogger on legal topics. His politics lean in libertarian and conservative directions, and he admits being “very sympathetic” to the case against the ACA. Indeed, in late 2009, shortly before the law was passed, Blackman was asked to help write a report explaining its constitutional infirmities, a document some legal conservatives hoped to send to Congress. He declined on account of his position at the time as a law clerk to a federal judge. That was the right thing to do. But even if Blackman hadn’t been clerking, he might well have decided not to become involved; for, as he indicates here, he was concerned that a decision striking down the ACA, which President Obama regards as his principal domestic achievement, would be perceived in political terms and thus undermine the notion that the Court is above politics.

Blackman’s sympathy for the constitutional arguments against the ACA, and his concern for judicial restraint in this landmark case, help shape a sure-footed narrative that benefits from his reporting. Blackman interviewed more than 100 people, among them attorneys who represented the challenging parties and federal lawyers who defended the ACA, as well as journalists who covered the case.

He usefully begins by explaining the difficulties involved in regulating health care, as well as the conservative origins (more than 20 years ago at the Heritage Foundation!) of the so-called individual mandate, and Obama’s decision to endorse the mandate after having opposed it during the 2008 campaign. 

The ACA was passed on straight party-line votes on March 23, 2010, and before the ink of the president’s signature “was even dry,” writes Blackman, the constitutional challenge to it commenced, with lawsuits filed in courts across the country. Blackman shows how each fared, and how the case from Florida—a coordinated challenge that united 27 states in opposition to the ACA—became the one that the Supreme Court reviewed.

Here, in Unprecedented—so titled for the many ways in which the ACA and the legal challenge to it represent new developments—Blackman covers the legal strategies on both sides; the oral argument in the Supreme Court that consumed six hours over the course of three days; the rhetoric outside the Court (in political Washington) as to how the justices should decide the case; and, of course, the decision itself, in which Obamacare was sustained, thanks to Chief Justice John Roberts.

At the heart of the ACA is the individual mandate, which seeks to expand health care coverage by requiring individuals to buy insurance and imposing on those who do not a penalty paid to the IRS. What many regarded as the key legal question in NFIB was whether the mandate was a valid exercise of the commerce clause, which, in famously spare terms, gives Congress the power to “Regulate Commerce .  .  . among the several states.”

Chief Justice Roberts found that the mandate could not be supported by the commerce clause, a position also taken by Justices Scalia, Kennedy, Thomas, and Alito. In Roberts’s words, which, as Blackman points out, echoed the arguments of the challengers: “Congress has never before attempted to use the commerce power to order individuals not engaged in commerce to buy an unwanted product”—in this case, health insurance—and “nothing in the text to the Constitution suggests it can.”