So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers -- a huge cohort, I am sure -- would be to read aloud briefs filed by the challengers, and take turns drinking when the word "unprecedented" is used.
Indeed, the argument that there is no Supreme Court precedent sanctioning the assertion of power the government claims -- that the individual mandate is, quite literally, unprecedented -- goes back to the earliest articulated constitutional arguments against Obamacare, particularly by the "intellectual godfather" of the legal challenges. I can tell you that Cato's latest Obamacare brief, which we'll be filing in the Eleventh Circuit -- the Florida-led 26-state case -- next week, uses the word three times. (We also use "novel.")
The drinking game that Joondeph proposes, however, is not, um, unprecedented. Josh Blackman has been talking about it incessantly at least since our time writing about the Privileges or Immunities Clause. He even blogged about it last August!
I would suggest that Brad and Josh play the "unprecedented" drinking game to settle the score once and for all, but alas Josh doesn't drink. Maybe I should step in for him; if I can bet Yale law professor Akhil Amar $100 on the outcome of the litigation, I can certainly do this.
For other connections between booze and the Commerce Clause, see my recent post on the (unfortunately not unprecedented) Care Act.