The individual mandate was unprecedented.
Never before had Congress compelled individuals who chose to do nothing to buy a product. The legislative process to enact Obamacare was unprecedented.
Never before had such a monumental and transformational law been enacted so quickly with no support from the minority party.
All previous landmark legislation was passed with strong bipartisan support. The groups that opposed the law and rallied around the Constitution were unprecedented. Never before had constitutional social movements emerged and gained steam so quickly.
Though many of the most prominent social movements in our nation’s history — such as movements for the abolition of slavery, for women’s right to vote, and for civil rights — used the Constitution as their rallying cry, never before had a group like the Tea Party emerged spontaneously, and immediately obtained such prominence.
The legal challenge to Obamacare was unprecedented. Never before had a constitutional argument flourished and developed so quickly, gaining acceptance by courts in a matter of months rather than years (with the possible exception of Bush v. Gore, which materialised in 36 days).
Even during the constitutional challenges to the New Deal, challengers applied long-standing doctrines about the scope of federal power.
The 26-state union that opposed this law was unprecedented. Never before had a majority of the states in our Union fought so vigorously against an act of Congress. The political tensions created between the president, the Congress, and the courts were unprecedented. Never before had all three branches of our government clashed so quickly and decisively in a constitutional challenge.
Even President Roosevelt’s aborted courtpacking scheme came together over a number of years, following several resounding defeats at the Supreme Court. Here the campaign was waged before the justices had even decided the case.
Finally, the Supreme Court’s opinion in this case was unprecedented in that it deftly upheld a law never enacted, but did so in such a way as to render it largely ineffective. Under NFIB, the mandate can never impose a penalty high enough to create incentives to purchase health insurance.
This case was in every sense unprecedented.
From these unprecedented events, we can draw several lessons.
Don’t pass landmark laws on party-line votes. Don’t doubt popular movements that seek the Constitution as a higher power. Don’t doubt legal scholars who advance plausible constitutional arguments. None of these strategies proved effective.
The final lesson is less clear. Though the administration’s effort to politicize the courts worked in the short term, I fear what this may do to the Supreme Court in the long run. Attempts by the political branches to intimidate the Court are nearly as dangerous as the Court disrespecting its role among the political branches.
As Justice Thomas said in February 2011, in response to calls for his recusal, “You all are going to be, unfortunately, the recipients of the fallout from [this politicization of the judiciary]. There’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties.”
When that day comes, Thomas implied, those institutions won’t be there. The leak of the chief justice’s decision to change his vote, followed by the battle to sway him back, underscores how precarious this credibility is.
For now, I hope that the constitutional clash from 2009 to 2012 remains unprecedented and is never repeated.
From “UNPRECEDENTED: The Constitutional Challenge To Obamacare” By Josh Blackman. Copyright © 2013 by Josh Blackman. Reprinted with the permission of PublicAffairs, a division of the Perseus Books Group.
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