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Book Review: Unprecedented: The Constitutional Challenge to Obamacare

October 6, 2013 in Economics

By Ilya Shapiro

Ilya Shapiro

Unprecedented: The Constitutional Challenge to Obamacare
By Josh Blackman
PublicAffairs, USA, $27.99, 352 pages

In 2012, the U.S. Supreme Court became the center of the political world. In a dramatic and unexpected 5–4 decision, Chief Justice John Roberts voted to save the Affordable Care Act, commonly known as Obamacare. Josh Blackman’s magisterial Unprecedented tells the inside story of how this constitutional challenge raced across all three branches of government and narrowly avoided a collision between the Supreme Court and President Obama.

The book offers unrivaled inside access to the key decision makers in Washington, based on interviews with over 100 of the people who lived this journey — including the academics who began the challenge, the lawyers who litigated the case at all levels, and the Obama administration attorneys who defended the law. It reads like a political thriller, providing the definitive account of how the Supreme Court almost struck down the president’s “unprecedented” law. It also explains what this decision means for the future of the Constitution, the limits on federal power, and the Supreme Court.

Unprecedented is not a legal book, in the sense that it’s not a “treatise” by which to teach law students about health care law or even the jurisprudence surrounding the Commerce Clause, Congress’s constitutional power to regulate interstate commerce. There’s plenty of doctrinal explanation, to be sure, tracing the development of modern federal authority to regulate the economy. But fundamentally this book is a story about a lawsuit and how a group of legal activists, intellectuals, and practitioners conceived and executed a stunning attack on the Obama administration’s signature legislative achievement.

As with Thurgood Marshall and the legal heroes of the civil rights era, Georgetown professor Randy Barnett (who wrote the book’s foreword) and other scholars developed theories that snowballed into judicial victories that could not be ignored by the national media and political classes. What had appeared at first to be “off the wall” libertarian thought experiments moved “on the wall” as they were picked up by the attorneys generals of Virginia and Florida and operationalized by leading appellate advocates like Paul Clement and Michael Carvin. On the other side, Neal Katyal and then Don Verrilli pressed the government’s defense, ultimately losing their central arguments but salvaging Obamacare.

At this point I should mention that I was no neutral observer of this tale. The Cato Institute, the libertarian think tank where I hang my …read more

Source: OP-EDS

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