WH: We still have confidence in Donald Verilli

posted at 11:35 am on March 28, 2012 by Ed Morrissey

If so, the Obama administration might be alone on the Left in saying so.  After the disastrous session of oral arguments on the individual mandate yesterday — which Jeffrey Toobin called “a train wreck for the administration” — most of ObamaCare’s backers were not exactly generous with Verilli.  At Mother Jones, Adam Serwer called Verilli’s performance “abysmal,” and the Washington Post’s Ezra Klein criticized his delivery and noted that the liberal justices had to rescue him.  A couple of journalists compared him to arguably incompetent sports figures like JaVale McGee and Billy Cundiff.  That’s the kind of notoriety that Solicitors General rarely get, and never want.

So far, though, the Obama administration stands behind him, perhaps because they don’t have any relief warming up in the bullpen:

“Mr. Verrilli is an extraordinarily talented advocate who possesses a sharp mind, keen judgment, and unquestionable integrity. He ably and skillfully represented the United States before the Supreme Court yesterday, and we have every confidence that he will continue to do so,” White House counsel Kathryn Ruemmler said in a statement.

Is the White House arguing that Verilli couldn’t offer a coherent defense not because he’s not capable of doing so, but that he’s defending the indefensible?  That’s what the RNC thinks, which rides to Verilli’s rescue in a way with their new ad:

Ouch. Today should go a little better, however, as the Supreme Court moves away from the individual mandate and focuses on severability and the expanded Medicaid mandate.  Those are issues where the administration has more of an arguable position, especially on  Medicaid:

The Supreme Court will complete its review of President Obama’s health care law Wednesday by considering whether all of the law must fall if part of it is found unconstitutional, and whether the law’s proposed Medicaid expansion violates the federal-state partnership.

The Medicaid expansion decision might have the most lasting impact on the federal government’s ability to use its spending power to pressure state action. The Supreme Court has said there is a limit to what the government can force states to do in order to receive federal funds — a condition cannot be “so coercive as to pass the point at which pressure turns into compulsion.” But the court has yet to find a case where the federal government has gone too far.

Once again, the justices may look for a limiting principle, but at least this time the precedent has long existed for federal control of Medicaid decisions.  As Steven den Beste wrote earlier today, severability is the key — even more so after yesterday’s debacle for ObamaCare backers.  If the court finds that the lack of a severability clause expresses the wish of Congress, then overturning any part of ObamaCare will force them to throw the entire bill out (including the Medicaid expansion).  It will be difficult to explain how the removal of the severability clause during the legislative process was anything other than deliberate, but then again, the court found a right to abortion in an emanation from a penumbra nearly 40 years ago, so anything is possible.  A lack of severability would bring us back to square one — and utterly negate two years of work by Obama and Democrats.

Update: Toobin follows up his analysis yesterday by emphasizing today how “awful” Verilli’s performance was:


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Comment pages: 1 2

Something tells me Alito might vote for this

liberal4life on March 28, 2012 at 11:41 AM

Well, the little voices in your head have been wrong on all counts so far. Take my advice, take your meds and they’ll go away.

Kingfisher on March 28, 2012 at 12:55 PM

Here’s hoping Clarence is pissed off at Ginny about something – and knows just how to get her back good.

verbaluce on March 28, 2012 at 12:56 PM

Something tells me Alito might vote for this

liberal4life on March 28, 2012 at 11:41 AM

It’s not the voices in MY head that worry me; it’s the ones in YOUR head that do

NoFanofLibs on March 28, 2012 at 1:05 PM

Carvin to guest on Megyn Kelly’s show momentarily.

The morning arguments coverage just started on C-Span.

novaculus on March 28, 2012 at 1:06 PM

Here’s hoping Clarence is pissed off at Ginny about something – and knows just how to get her back good.

verbaluce on March 28, 2012 at 12:56 PM

Huh? Verbalucerilli, what did I miss?

bettycooper on March 28, 2012 at 1:10 PM

We’ll know if it is approved, if a majority of the court hold it’s decision wearing hoodies….

How fragile this freedom thing left in the hands of far lesser people than our founding fathers….

Don L on March 28, 2012 at 1:11 PM

Well, really, no one else could have done any better. Verilli did the best anyone could do. The most informed and articulate presentation of the government’s case possible.

de rigueur on March 28, 2012 at 11:45 AM

That’s the problem. If Verilli did the best that anyone could do then that might suggest that ObamaCare is one of the worse-written laws ever. Let’s face it, Verilli wasn’t prepared.

Imagine a doctor or a pharmacist having to follow the letter of the law from this train wreck?

Kingfisher on March 28, 2012 at 1:11 PM

That had a much more qualified and passionate advocate for 0bamacare than Verilli, but she was busy that day. Also you can’t be SG and also sit on the SCOTUS for the same case.

pedestrian on March 28, 2012 at 1:12 PM

verbaluce on March 28, 2012 at 12:56 PM

Huh?
Thomas never speaks during oral arguments.

annoyinglittletwerp on March 28, 2012 at 1:14 PM

“Milli” Verrelli.

dthorny on March 28, 2012 at 1:19 PM

annoyinglittletwerp on March 28, 2012 at 1:14 PM

bettycooper on March 28, 2012 at 1:10 PM

Really?
No worries if you don’t follow.

verbaluce on March 28, 2012 at 1:25 PM

Just as a hypothetical what do you suppose might happen if the Supremes rule against the entire act and Obama just announces that he’s going to ignore them? Not that a lecturer in constitutional law would ever consider such a thing.

JimK on March 28, 2012 at 1:31 PM

verbaluce on March 28, 2012 at 12:56 PM

Huh?
Thomas never speaks during oral arguments.

annoyinglittletwerp on March 28, 2012 at 1:14 PM

.
Rarely.

But he will talk eventually, and when he does, he’ll say something “profound”.

Also, whatever he says will greatly upset the ‘left’, and cause some kind of outcry against him.

listens2glenn on March 28, 2012 at 1:31 PM

lololol
poor little lib talking heads think the rnc ad is a low blow

man up

cmsinaz on March 28, 2012 at 1:32 PM

Obama’s administration has been a parade of dopes and odd balls. I don’t think O is much judge of talent. I was able to identify the SG’s logical progression, something like God is love…love is blind…Stevie Wonder must be god? That works!

StevC on March 28, 2012 at 1:35 PM

This guy reminds me of the attorney that one of the kids briefly used in place of Vinny in the movie “My Cousin Vinny”.

lhuffman34 on March 28, 2012 at 1:50 PM

Something tells me Alito might vote for this

liberal4life on March 28, 2012 at 11:41 AM

It’s your brain.

Schadenfreude on March 28, 2012 at 1:52 PM

Something tells me Alito might vote for this

liberal4life on March 28, 2012 at 11:41 AM

Um, he’s not referred to as ‘Scalito’ for nothing…

verbaluce on March 28, 2012 at 2:06 PM

Schadenfreude
Brain……huh

angrymike on March 28, 2012 at 2:26 PM

INCOMPETENCE in the Obama Administration knows no Bounds! It is hard to find someone competent that surrounds Obama and listens to his nonsense.

Obama can barely speak without a teleprompter telling him what to say or how to think. And his teleprompter seems to fail quite often in the area called logic, facts and truthfulness.

Obamatrix on March 28, 2012 at 3:03 PM

As to severability – don’t lawyers to to school and learn that ‘if it ain’t it writing, it ain’t’?

GarandFan on March 28, 2012 at 11:43 AM

The legislative history is three years old. Dems had a severability clause in this thing. Then they yanked it. And then they passed it.

How much clearer does legislative intent need to be?

SCOTUS may go 5-4 on the mandate, but they have to go 9-0 on severability.

BuckeyeSam on March 28, 2012 at 11:43 AM

This.

Why is the severability thing even an issue? It ain’t there, it ain’t in writing, AND when it was there, it was yanked. WHY is there even any question?

sage0925 on March 28, 2012 at 3:42 PM

They don’t really need him; they’ve already got Kagan arguing their brief.

morganfrost on March 28, 2012 at 4:35 PM

The legislative history is three years old. Dems had a severability clause in this thing. Then they yanked it. And then they passed it.

How much clearer does legislative intent need to be?

SCOTUS may go 5-4 on the mandate, but they have to go 9-0 on severability.

BuckeyeSam on March 28, 2012 at 11:43 AM

Historically, legislative severability provisions have been treated by the courts as “advisory”and an indication of legislative intent, but they have never felt bound by them. Hence, the absence of such a clause as here, and even though it was withdrawn, is not binding but it’s inclusion and subsequent withdrawal gives some ammunition to the justices who rightly would rule the entire act unconstitutional following a finding that the mandate was unconstitutional.

TXUS on March 28, 2012 at 4:39 PM

This guy reminds me of the attorney that one of the kids briefly used in place of Vinny in the movie “My Cousin Vinny”.

Yes, the public defender with the terminal speech impediment. Ouch!
Yet both funny, and accurate!

ugottabekiddingme on March 28, 2012 at 6:12 PM

The administration tried to get Milli Vanilli but had to settle for Donni Varilli

JusDreamin on March 28, 2012 at 7:46 PM

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