"When this case first started in 2009 it was a laugher," explains Josh Blackman, assistant professor at the South Texas College of Law and author of the new book Unprecedented: The Constitutional Challenge to Obamacare, which tells the inside story of the legal challenge surrounding President Obama's signature law. "Fast forward two-and-a-half years and this argument gained steam and gained traction and started to be accepted by judges and some scholars. And then we go to the Supreme Court where five justices say that Congress can't regulate inactivity and seven justices say that the federal government can't coerce states into accepting Medicaid money. Holy cow!"
In the end, of course, the court upheld Obamacare's individual mandate by declaring it a tax, which critics believe effectively rewrote the legislation. Blackman believes Chief Justice John Roberts' majority opinion wrongly "upheld a law that Congress never wrote," but he sees a clear indication that the "federalism revolution" of the Rehnquist court is still ongoing. "You now have the strong constitutional undercurrent in the people [via the Tea Party talking] about what the federal government can do, and you have the Supreme Court on record saying that there are certain things the government can and can't do. This, actually, is not so bad for libertarians. This might be a good recognition that the Constitution has very strong libertarian principles embedded into it."
Blackman sat down with Reason's Damon Root to discuss Unprecedented, the case against Obamacare, and how he sees the remaining legal challenges against the health care law faring in court.
Produced by Meredith Bragg. Cameras by Todd Krainin and Bragg.
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