Josh Blackman

Josh Blackman is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He is the author of Unprecedented: The Constitutional Challenge to Obamacare and also blogs at

After Obamacare: A Conversation with Josh Blackman

unraveledThis edition of Liberty Law Talk discusses with Josh Blackman his latest book, Unraveled: Obamacare, Religious Liberty, and Executive Power. Professor Blackman has been engaged with Obamacare since its creation and discusses the ways the law has impacted our thinking about healthcare, the regulatory state, and religious liberty.

Declaratory Judgment as a Quasi-Injunction

Traditionally, in order to obtain an injunction, a plaintiff must prove four elements: “A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and that an (4) injunction is in the public interest. If an injunction is issued, a defendant is ordered to do, or not to do something. Failure to comply with the order can result in contempt of court.

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If the Obamacare “tax” exceeds the cost of insurance, it becomes a unconstitutional “penalty”

In NFIB v. Sebelius, the Chief Justice applied a saving construction to the Affordable Care Act’s penalty, and treated it as a tax, to uphold its constitutionality. (Thom Lambert has a great piece in Regulation Magazine on this topic). But, the Chief Justice placed limitations on the application of the saving construction. The first such limitation stated that because the cost of the “tax” is less than the cost of insurance, a person has a legitimate choice, and there is no coercion:

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Elane Photography is a Bad Vehicle For Religious Liberty Case (Post Updated)

Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.


Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony.  While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:

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What Do Americans Voting with Their Feet Prefer? Better Public Services or More Cash?

In his new book, Average is Over, Tyler Cowen makes a number of observations about the intersection of technology and society, and explains how these shifts will impact our society. Specifically, Cowen argues that being average is over. Echoing forecasts by Charles Murray, Cowen explains how the middle class will continue to shrink as technology can replace many more of their routine jobs. Those with certain skills and abilities, or can learn to work with technolgoy, will continue to flourish more. Those who do not adapt, Cowen argues, will earn less, and learn to deal with less (and that is not necessarily a bad thing, he contends). One manifestation of this shift will be that people with less means will, to use Ilya Somin’s framework, vote with their feet, and move to places where living is less expensive, and a lower salary will go further.

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Holmes: “If my fellow citizens want to go to Hell I will help them. It’s my job.” And he meant it.

In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:

I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.

And he meant it. Beyond such obvious examples of this philosophy, such as Buck v. Bell, where Justice Holmes upheld a law requiring the sterilization of those deemed mentally incompetent (even if there was no real evidence they were mentally incompetent), I was recently reminded of this quotation when I taught Giles v. Harris.

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Section 4 of the Fourteenth Amendment and Compensation for Emancipation of Slaves

Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln's war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south. Section 1…

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What Happens if Data is Speech?

Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. In a new essay titled “What Happens if Data is Speech,” published in the University of Pennsylvania Journal of Constitutional Law Online, I consider the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.

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When the Justices Talk about the Constitution outside the Court

Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.

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Obamacare and Government by Blog Post

One of the more disconcerting aspects of following the Affordable Care Act, beyond the numerous delays and waivers announced weekly, has been the cavalier approach by which the government announces these changes. To say nothing of the merits of these significant changes, it is often difficult to find out why and how the government has justified these decisions. More often than not, the explanation will come in a blog post on the Department of Health and Human Services blog (often on a Friday afternoon). Or, perhaps if we are lucky, there will be a handy PDF explaining the changes in more detail.

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