Democratic Policy & Communications Committee Cites “Unprecedented”

The Democratic Policy & Communications Committee released a report titled “How the Right-wing Capture of Our Courts Threatens Health Care and Reproductive Rights for Millions of Americans.” I am happy they cited my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare. Here is an excerpt:

As soon as the law passed in 2010, the dark-money-funded National Federation of Independent Business8 (NFIB) and twenty-six Republican attorneys general all sued, arguing a key aspect of the law was unconstitutional.9 When the litigation started, “the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.”10 However, a coordinated effort by the Heritage Foundation and other dark-money-funded organizations moved this radical argument into the right-wing mainstream.11 The organizations collaborated with the Republican attorneys general who filed suit and conscripted law professor Randy Barnett to draft an influential report on the constitutionality of the ACA.12 According to its legal director Todd Gaziano, Heritage hoped the report would “convince [professors] to write” articles, op-eds, and blog posts to lay the foundation for future constitutional challenges.13 Heritage also courted Congressional staffers in order to get the paper in the legislative record.14 Other dark-money organizations directly funded NFIB’s litigation.15

12 Todd Gaziano, Randy Barnett, & Nathaniel Stewart, the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, THE HERITAGE FOUNDATION (Dec. 9, 2009), available at; Josh Blackman, How Randy Barnett joined the constitutional challenge to Obamacare, THE VOLOKH CONSPIRACY (Sept. 10, 2013),


14 Id.

I’m not sure they actually read the book, but a citation is a citation.

When I wrote Unprecedented in 2013, I could not have fathomed that we would still be arguing about the constitutionality of Obamacare in the year 2020.

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