Obamacare’s Path to Power

Unprecedented_Blackman

The story of the Affordable Care Act is as twisted and bizarre as anything ever written by Stephenson, Kafka, or Orwell. It is an Act that saw the President oppose his signature legislation, before he supported it, and that saw the President’s challenger sire the Act, before he disowned it. The Act sparked conservative outrage around the country, though it was conceived in the heart of the conservative movement. It passed only through handouts to some States, but was partially stricken as violating the financial free will of all the States. And, of course, it is an Act that raised no taxes, but that survives as a valid exercise of the taxing power.

In Unprecedented: The Constitutional Challenge to Obamacare, Josh Blackman tells the story of Obamacare with the flair of a novelist and the eye of a historian. Blackman, a law professor who helped coordinate the legal challenges to the Act, describes the Act’s full history: as a policy innovation, a political machination, a campaign football, a media spectacle, and, last but not least, a legal drama. Throughout, Blackman conveys both the historical sweep of the transformative law and a minute-by-minute, insider look into the series of events – some would say accidents – that have allowed the Act to survive numerous political and legal challenges. Despite (or perhaps because of) the book’s insights, after reading it, the reader is still left asking a very basic question: How on earth did the Affordable Care Act become the law of the land?

As Blackman recounts, during the 2008 and 2012 presidential elections, three of the four major presidential nominees publicly opposed the concept of an individual mandate: Obama circa 2008, McCain 2008, and Romney 2012. During the 2008 presidential primaries, Senator Obama regularly ridiculed Senator Clinton’s health care plan, which included a mandate. Obama did not want the government to force people to buy insurance. As Obama analogized, the government could not “solve homelessness by mandating that everyone buy a house.” A few months after his election, however, President Obama embraced Clinton’s approach.

Obama had lots of company on the flip-flop express. A scholar at the Heritage Foundation, the conservative think tank, first proposed an individual mandate to solve the problem of health care free riders. These free riders would receive “free” treatments, such as at emergency rooms, and leave the bill for society (Heritage later disavowed this position). In the early 1990s, after First Lady Hillary Clinton promoted “Hillarycare,” many Republicans supported the individual mandate as a viable alternative. Early supporters included Newt Gingrich, Bob Dole, and even Milton Friedman. In 2006, Governor Mitt Romney imposed an individual mandate in Massachusetts. According to Romney, his health care plan represented “the ultimate conservative idea, which is that people have responsibility for their own care.” By the 2012 election, of course, Romney promised to repeal the federal mandate, while still supporting his state’s decision to impose a mandate at the state level.

Turning to Congress, Blackman recounts, in unsavory detail, the full range of pork, sausage, and baloney that led to the Act’s passage (no wonder Lisa Simpson, a noted vegetarian, called Washington the “cesspool on the Potomac”). Who could forget the “Louisiana Purchase” and the “Cornhusker Kickback,” both of which gave states extra Medicaid funding to secure the votes of those states’ senators? There was the Stupak Amendment, a deal that secured the votes of pro-life Democrats in exchange for a largely meaningless executive order to preclude Obamacare from funding abortions. Finally, after Scott Brown succeeded Ted Kennedy in the Senate and eliminated the Democrats’ filibuster-proof Senate majority, the House and Senate used complicated procedural maneuvers to allow the Act to become law with only fifty-one votes in the Senate. Had any one of these or other machinations fallen through, Obamacare may well never have become law, at least in its present form.

Obamacare’s sordid electoral and legislative history has ongoing relevance, particularly as public polls continue to show that a majority of Americans oppose the law. The public has never given the Affordable Care Act a resounding “mandate.” In 2008, both presidential candidates opposed the concepts later enacted in Obamacare. In the 2010 midterm elections, the Republicans used Obamacare to regain control of the House and gain seats in the Senate. While it is true that, in 2012, the presidential candidates stood on different sides of the issue, the Romney campaign was unable or unwilling to present the public with a clear contrast given Governor Romney’s past support of the individual mandate (for this reason, Blackman writes that Romney “was the worst conceivable candidate to challenge Obama on one of the most significant issues of 2012”). Obamacare’s tenuous democratic and legislative pedigree probably explains, at least in part, much of the public’s unwillingness to accept the law as a done deal. One is reminded of much of the public’s seeming unwillingness to accept President Bush’s legitimacy in the aftermath of Bush v. Gore.

As well as Unprecedented recites this history, the book really hits its stride when it discusses the legal drama. Based on numerous interviews and on his own experience as a litigant, Blackman provides behind-the-scenes insights into the various lawsuits’ legal strategies and leading personalities. He describes how the nation’s leading appellate lawyers, as well as ambitious politicians, sought to take a leading role in the litigation. He explains how Elena Kagan, Solicitor General during Obamacare’s passage, insulated herself from the law’s legal defense in order to preserve her ability to hear the case as a justice on the Supreme Court. He discusses the Obama Administration’s choice of a new Solicitor General, Donald Verrilli, to lead the defense of the law, and how that choice may have saved the law in the Supreme Court.

In a break from the Administration’s prior strategy, Verrilli rested the Act’s defense on the taxing power, rather than on the Commerce Clause. Verrilli believed that the taxing power provided the federal government with broader authority than the Commerce Clause. After all, during the New Deal, the Supreme Court had upheld the Social Security Act based on the taxing power. Plus, one conservative judge on the D.C. Circuit Court of Appeals had endorsed the taxing power as a valid basis of authority for the law. Moreover, the Commerce Clause faced serious hurdles as a source of authority. No one had been able to articulate a satisfactory “limiting principle” to the federal government’s authority under the Commerce Clause. In other words, if the federal government had the power to force individuals to buy insurance, then could not the government could force individuals to buy broccoli? Taken to its logical conclusion, if the Commerce Clause authorized the individual mandate, the answer had to be yes.

On the other hand, Verrilli’s proposed strategy contained some serious risks of its own. Chief among them, both President Obama and Congress had repeatedly and emphatically denied that the individual mandate represented a tax. During an interview, Obama “absolutely reject[ed]” the idea that the mandate imposed a tax increase, and congressional Democrats had scrupulously referred to the mandate as a “penalty” rather than a tax. As a result, many of the lower courts refused to uphold the Act on the basis of the taxing power. For example, one district court judge, Roger Vinson, wrote that “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely.” In addition, the tax argument faced a technical procedural hurdle — Verrilli would argue that the mandate was a “tax” for purposes of the Constitution, but not a “tax” for purposes of the Anti-Injunction Act.

With the scene set, Blackman describes the oral arguments in vivid detail. Among the highlights, he explains Verrilli’s awkward, clinking pause at the beginning of his argument (he had a sore throat and took an ill-timed sip of water); Justice Scalia’s attempts to inject some levity into the argument by invoking Jack Benny’s “money or your life” routine (which annoyed the Chief Justice); the impeccable oral argument skills of Paul Clement, the lead lawyer for the challengers; and, most importantly, Verrilli’s strategic decision to avoid providing the Court with a limiting principle on the Commerce Clause.

In some of the book’s most humorous passages, Blackman also relates the minute-by-minute scenes inside and outside the courtroom as the justices read their opinions. As Blackman notes, the media members inside the court decision were among the last to know the result, because the justices slowly read their opinions from the bench even as the decision had been handed out publicly outside the courtroom. In contrast to the tense but sedate atmosphere inside the courtroom, on the outside, the media engaged in a frenzied attempt to quickly dissect the opinion, with some of the networks initially reporting an incorrect result. According to Blackman, because of these incorrect media reports, the White House staff came within a hair of informing President Obama that the law had been struck down.

Ultimately, of course, Chief Justice Roberts vindicated Verrilli’s strategy. As the pivotal vote, the Chief agreed that the mandate could be construed as a tax for constitutional purposes but not for statutory purposes, regardless of how the President and Congress labeled the law. Moreover, as Verrilli feared, a majority of the Court rejected the Commerce Clause as a valid basis for the law. Verrilli, however, did lose his argument on the Medicaid issue, the secondary issue in the case. On this point, the Court, by a surprising 7-2 majority, held that Congress had improperly “coerced” the States into expanding their Medicaid rolls by threatening them with the loss of all Medicaid funding.

Blackman concludes that, as its most enduring legacy, Obamacare may serve as a template for how the Executive Branch can successfully apply political and media pressure to the Supreme Court. Blackman reprints contemporaneous media reports that Chief Justice Roberts had initially voted to strike down the law, but later changed his vote under pressure from the media and Administration. As Blackman notes, several columnists wrote that the Supreme Court could endanger its legitimacy should it invalidate the Act. Moreover, President Obama himself had loudly criticized the Supreme Court for its campaign finance decision in Citizens United during his State of the Union address. After the Obamacare argument, the President signaled that the Court would be very unwise to strike down the law: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Herein lie the final ironies of the Affordable Care Act. If the media reports are true that public pressure actually affected the Supreme Court (and no one may ever know for certain), then the Supreme Court may have bowed to public pressure to uphold a law that remains unpopular with the public. Moreover, whether the public pressure actually had an effect, the very fact that the possibility exists may lead a future Administration to attempt to pressure the Supreme Court. As a result, a decision designed to save the Court’s legitimacy could lead to more political-style campaigns to influence the Court, and lead the public to view the Court as another extension of the political branches.

Asheesh Agarwal

Asheesh Agarwal is an attorney based in Indianapolis.

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