Democratic Policy & Communications Committee Cites "Unprecedented"

"The organizations collaborated with the Republican attorneys general who filed suit and conscripted law professor Randy Barnett to draft an influential report on the constitutionality of the ACA."

|The Volokh Conspiracy |

The Democratic Policy & Communications Committee released a report titled "How the Right-wing Capture of Our Courts Threatens Health Care and Reproductive Rights for Millions of Americans." I am happy they cited my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare. Here is an excerpt:

As soon as the law passed in 2010, the dark-money-funded National Federation of Independent Business8 (NFIB) and twenty-six Republican attorneys general all sued, arguing a key aspect of the law was unconstitutional.9 When the litigation started, "the idea that the Act's mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy."10 However, a coordinated effort by the Heritage Foundation and other dark-money-funded organizations moved this radical argument into the right-wing mainstream.11 The organizations collaborated with the Republican attorneys general who filed suit and conscripted law professor Randy Barnett to draft an influential report on the constitutionality of the ACA.12 According to its legal director Todd Gaziano, Heritage hoped the report would "convince [professors] to write" articles, op-eds, and blog posts to lay the foundation for future constitutional challenges.13 Heritage also courted Congressional staffers in order to get the paper in the legislative record.14 Other dark-money organizations directly funded NFIB's litigation.15

12 Todd Gaziano, Randy Barnett, & Nathaniel Stewart, the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, THE HERITAGE FOUNDATION (Dec. 9, 2009), available at https://www.heritage.org/health-care-reform/report/why-the-personal-mandate-buy-health-insurance-unprecedented-and; Josh Blackman, How Randy Barnett joined the constitutional challenge to Obamacare, THE VOLOKH CONSPIRACY (Sept. 10, 2013), http://volokh.com/2013/09/10/randy-barnett-joined-constitutional-challenge-obamacare/.

13 Josh Blackman, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE 44 (2013).

14 Id.

I'm not sure they actually read the book, but a citation is a citation.

When I wrote Unprecedented in 2013, I could not have fathomed that we would still be arguing about the constitutionality of Obamacare in the year 2020.

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  1. Who could have fathomed in 1939 that 69 years later there would still be an argument going on about the meaning of the militia reference in the 2d Amendment.

    1. It’s easy to fathom if you look at it not from the standpoint of Constitutional law but from the standpoint of threatened masculinity. Freud is a better guide here than Madison.

      1. “shall not be infringed” is an even better guide.

    2. I hope you realize that the US V Miller decision in 1939 actually assumes 2A as an individual right.

      Had the 1939 court thought otherwise they would have dismissed miller’s challenge to his conviction on a 2A basis for lack of standing rather than considering twhether or not a short barreled shotgun is covered by 2A.

      Interestingly that court decided that the Short barreled shotgun was not covered because it was not a military weapon.

      By that reasoning the M16 should be the most protected.

      Oh, and the court in 1939 was wrong on the facts regarding short barreled shotguns not being militarily useful. They were standard issue for trench warfare in WWI.

      1. I agree this is what Miller held. And I don’t think there was ever any reason for Heller to have departed from it.

        There is an individual right. But the scope of the individual right is determined with an eye to the needs of a well regulated militia.

        This is what Miller held. And this is the approach the Heller court should have taken.

    3. Who could have fathomed that there still would be people walking around saying we should reinstate Lochner and Hammer v. Dagenhart.

  2. “a citation is a citation” will be your epitaph.

  3. “the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.”

    I think this more shows how out-of-touch “most legal professionals and academics” were (and are). Joe Sixpack understood that the power to regulate commerce did not extend to making him purchase something he didn’t want to buy.

    1. If that statement were true as written, I’d agree that it would condemn the common sense of “most legal professionals and academics”. Since the quote was actually from an interested party making a motivated defense of ACA, the better hypothesis is that the attribution to “most legal professionals and academics” was wild hyperbole.

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