Moving The Section 3 Officer Argument From “Off The Wall” to “On The Wall”
Think back to 2010. The Affordable Care Act was signed into law. Challenges were filed across the country. Each case presented a central question: could Congress mandate that people purchase health insurance? A vigorous debate formed. Some legal scholars, including my colleague Randy Barnett, argued that the federal mandate was beyond Congress’s powers. It was unprecedented, they said. Other scholars argued that the mandate was squarely in Congress’s powers, or alternatively, there was no mandate at all. Needless to say, the position that Barnett and others advanced was ridiculed at every step. His position was called crazy, stupid, frivolous, and worse.
But then something changed. A federal district court judge in Florida agreed with Barnett’s argument. He wrote a careful decision laying out both sides, and ultimately concluding that the mandate was beyond Congress’s powers. Around the same time, prominent conservatives adopted the rallying cry that the federal government can’t make you buy health insurance, or for that matter, broccoli. To use Jack Balkin’s framing, an argument that was “off the wall” became “on the wall.” How it happened is complex. I discuss the history at length in my 2012 book, fittingly titled Unprecedented. I w
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