Not So Unprecedented: A Review of Unprecedented: The Constitutional Challenge to Obamacare by Josh Blackman

45 Pages Posted: 24 Jan 2015 Last revised: 2 Oct 2015

See all articles by R. Randall Kelso

R. Randall Kelso

South Texas College of Law Houston

Date Written: January 15, 2014

Abstract

In his book, Unprecedented: The Constitutional Challenge to Obamacare, Professor Josh Blackman presents a detailed account of the battle to defeat the Patient Protection and Affordable Care Act of 2010, giving us an inside-look at the strategy choices, and the highs and lows, of events surrounding the multiple cases involved in the ACA litigation. The book is very well-written, with lively, engaging prose, while taking the reader through the tumultuous events surrounding the ACA’s initial drafting, legislative maneuvering, and eventual passage on March 23, 2010, through the Supreme Court’s decision on its constitutionality on June 28, 2012.

Professor Blackman’s account includes three major conclusions: (1) the ACA was unprecedented in a number of ways; (2) despite the Supreme Court eventually voting to uphold almost all of the ACA, the litigation was, in many respects, a substantial victory for the conservative legal movement; and (3) to the extent Chief Justice Roberts may have changed his position in the case sometime between his initial vote following oral argument and his final decision, it was likely the product of a desire to preserve long-term court legitimacy against a background of liberal political and media pressure. This review challenges each of these three conclusions, presenting the argument that: (1) the ACA, while a major piece of legislation, was not that unprecedented; (2) the litigation outcome was a substantial defeat for the conservative movement, while coming remarkably close to victory; and (3) the likely change in Chief Justice Roberts’ position was due more to the dynamics of internal Court draft-opinion writing, not outside political and media pressure.

Suggested Citation

Kelso, R. Randall, Not So Unprecedented: A Review of Unprecedented: The Constitutional Challenge to Obamacare by Josh Blackman (January 15, 2014). Available at SSRN: https://ssrn.com/abstract=2518484 or http://dx.doi.org/10.2139/ssrn.2518484

R. Randall Kelso (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1837 (Phone)

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