Book profile: A Conspiracy Against Obamacare – The book based on the blog
on Jan 30, 2014 at 10:21 am
Two days after the 2012 challenges to the Affordable Care Act were argued and three months before they were decided by the Supreme Court, Adam Teicholz wrote this in The Atlantic: “Blogs – particularly a blog of big legal ideas called Volokh Conspiracy – have been central to shifting the conversation about the mandate challenges.” Paul Clement, the lead attorney who contested the law, agrees: “[I]f ever a legal blog and a constitutional moment were meant for each other, it was the Volokh Conspiracy and the challenge to the Affordable Care Act.” As Clement adds in his foreword to A Conspiracy Against Obamacare: The Volokh Conspiracy and the Affordable Care Act (Palgrave-MacMillan, 2014), edited by Trevor Burrus, he is friends with Eugene Volokh, “who clerked for Justice Sandra Day O’Connor the same year [he] clerked for Justice Antonin Scalia.”
The contributors to A Conspiracy Against Obamacare are Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, David Kopel, and Ilya Somin. In reading this unique volume – Clement tags it the contemporary equivalent of the Federalist Papers insofar as the challenge to the ACA is concerned – one sees the various arguments unfold over time (from August 17, 2009 to July 13, 2012). Throughout, Kerr serves as an intellectual sparring partner by way (to quote Barnett) of his “indefatigable resistance to every argument offered against the constitutionality of the individual insurance mandate.” The result is a back-and-forth constitutional dialogue that builds momentum, which at the time of the original blog entries attracted much legal, media, and public attention.
In the very beginning
Before the blog, however, there was a think tank. Here is how Barnett recently recalled that defining first moment: “I cannot resist noting that it was [in the Lewis Lehrman Auditorium at the Heritage Foundation] where the first public arguments against the constitutionality of Obamacare were aired . . . in December of 2009. I was on a program organized by the Heritage Foundation in which we presented the paper we wrote for Heritage in two weeks, arguing why the Affordable Care Act was unconstitutional, which had just come out of committee. It was a paper I wrote with Todd Gaziano of Heritage . . . and very importantly [with] Nathaniel Stewart . . . .”
To add to the constitutional story, Professor Barnett also noted: “And then I had a debate about [the ACA]. I argued that it was unconstitutional. And who did the Heritage Foundation dig up to argue that the law was constitutional? It was none other than Eugene Volokh . . . . I always thought that one of the reasons that we never heard from Eugene during the course of the debate, one way or another, is because he was already on record in this debate in arguing that it was constitutional.” And so it began, only to continue, in remarkable ways, on Volokh’s influential blog.
Enter the co-conspirators
A Conspiracy Against Obamacare is at once an intellectual biography of the challenges to the Affordable Care Act and a constitutional broadside against the ACA told by some of the contributors to the Volokh Conspiracy. More specifically, it reproduces the text of the actual blogs (and a few newspaper op-eds) that helped to inform the arguments that brought the case to the Supreme Court and thereafter helped to shape the arguments that some of the Justices eventually adopted. Among other things, the book is a story about the emerging role of blogs in influencing legal battles and public debate.
As the contributors freely admit, there is more to the story than their blogging. Early on, for example, there was an August 17, 2009 blog post by Rob Natelson entitled “Obamacare’s Dubious Constitutionality,” which was followed shortly thereafter by a Washington Post op-ed by David Rivkin and Lee Casey entitled “Constitutionality of Health Care Insurance Mandate Questioned.” Among other things, the post and op-ed fueled additional and more refined analysis and dialogue on the VC blog. Momentum built as the “conspirators” argued that the individual mandate was unconstitutional under then existing law (not the law as it should be, the law as it was, they stressed). And then the federal judiciary weighed in by way of the 2010 and 2011 opinions by Judges Henry Hudson and Roger Vinson, which first struck down the individual mandate and then struck down the entire ACA. In his foreword, Clement refers to those two opinions as “official game changers.” The result: More momentum, more VC commentary, and more analysis.
There was yet more: there were the challenges to the ACA brought by state attorneys general. As time progressed, those challenges and the VC commentaries began to mirror one another. Meanwhile, the Republican Party invested heavily in the constitutional attacks on the ACA, attacks that would have earlier seemed too esoteric for public consumption.
Before this momentum reached its crescendo in the oral arguments in National Federation of Independent Business v. Sebelius (2012), many of the arguments advanced by the VC bloggers were often dismissed as frivolous or preposterous or simply unrealistic. But with the passage of time in the blogosphere, that mindset began to change. As Professor Somin notes, the value added by the VC bloggers was that the “legal challenge to Obamacare gained traction precisely because it was backed by serious legal arguments.” Those arguments, or variations of them, inevitably found their ways into briefs filed in the Supreme Court, including briefs filed by some of the VC contributors (see, for example, here). Add to that the brief filed by Clement and Erin Murphy, followed by Clement’s argument to the Court, and you have the story of how the constitutionality of the ACA was first questioned and then litigated. (The entire back story of the events leading up to the Court’s ruling is set out in Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare (2013) (foreword by Randy Barnett).)
Goodbye to law reviews?
In times past, lawyers and judges sometimes looked to law reviews for guidance. Today, however, that seems so passé, rather like going to a pay phone to make a “long distance” call. Besides, much of the law review literature is, as the Chief Justice has complained, of little practical use. Enter the bloggers of the VC ilk. Timely, substantive, influential – that is their calling card, at least at their better moments. For all intents and purposes, the future belongs to the bloggers.
One final thought: If indeed A Conspiracy Against Obamacare is the contemporary equivalent of the Federalist Papers, one wonders whether the bloggers on the other side of the constitutional divide will one day collect and publish their Anti-Federalist Papers. If that were to happen, perhaps Solicitor General Donald B. Verrilli might write a foreword?