Green Room

With lawyers like Solicitor General Donald Verrilli, ObamaCare supporters need no enemies

posted at 4:51 pm on March 27, 2012 by

Earlier today, I penned a column highlighting some of the lamer defenses of the Affordable Care Act to come along in the days leading up to the current Supreme Court hearings. Among the more vapid arguments noted were those of former acting Solicitor General Neal Katyal who, in an interview with Agence France-Presse, made it clear that if he ever attended law school he had forgotten nearly everything he had learned.

Since that post appeared, the transcript of Tuesday’s oral arguments has been published, and it beginning to look as though Katyal’s successor, Donald B. Verrilli, suffers from the same limitation.

In the months of preparation for his appearance before the high court, Verrilli’s focus logically had to be on defending two constitutional provisions to justify the Obama administration’s claim of federal power in the exercise of ObamaCare. These are (1) the Commerce Clause, which grants Congress the power to ‘to regulate commerce … among the several states’, and (2) the justification derived therefrom to mandate that every American citizen buy health insurance.

Verrilli’s main task—in fact his only task—was to persuade the justices, in essence, that the law does not represent an unprecedented overreach by the administration or by Congress, which sent the legislation to the president’s desk in the first place. The one question he had to anticipate was “If the government can do this, what can it not do?”

Verilli was asked that question not once but twice. The first time, it was asked in precisely the form cited above by Justice Antonin Scalia. His response, to babble a handful of legal precedents, made it sound more as if he was taking a law school exam than presenting a cogent argument before the most esteemed jurists in the land.

The justices were unsatisfied with Verilli’s response, which led Justice Samuel Alito to ask virtually the same a short time later: “Could you just—before you move on, could you express your limiting principle as succinctly as you possibly can?” Again, Verrilli fell back on precedent. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” he said, citing two previous Supreme Court opinions that liberals have championed as defending the individual mandate.

The attorneys who are challenging the mandate have quoted chapter and verse from documents that surprise the will and intent of the framers of the Constitution. Verrilli, in defending the mandate, is able to offer up political talking points. With friends like him, who on the left needs enemies?

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IMO, verrilli is doing a bang up job for the citizens of the US! I bet verrilli would run rings around bho if he was doing his job? Wouldn’t you just love to see bho before the SC trying to say anything without a prompter? bho probably doesn’t know what a ‘brief’ is? Haven’t seen his college transcripts to prove otherwise have we?

I am still wishing beyond wish the SC Justices rule for our nation.

letget on March 27, 2012 at 5:17 PM

All fingers crossed. We are all screwed if it’s upheld.

No one is talking about everyone being coerced into a contract which is also against hundreds of years of precedence.

aniptofar on March 27, 2012 at 5:19 PM

I believe obama wants it overturned by the court to get it out of the way as a campaign issue. The most important thing to him is getting re-elected. He will claim that he fought hard for the little guy but was stymied by crazy conservative judges, lies on fox news, and Rush Limbaugh. His base knows he is trying to destroy our country and they want him to.

dunce on March 27, 2012 at 5:47 PM

A shaky performance, but remember, Verrilli could have answered Scaliaand Alito by reading off the first four pages of ads from the Village Voice’s escort service listings, and he’d still have four solid votes to uphold ObamaCare and the mandate. The key is (and was always going to be) whether or not Verrilli’s arguments past muster with Kennedy.

jon1979 on March 27, 2012 at 6:03 PM

truly sad when the lib justices are doing your job…

just a tool

cmsinaz on March 27, 2012 at 6:39 PM

Don’t blame the poor guy. He was handed a shit sandwich to defend.

Blake on March 27, 2012 at 6:43 PM

Verrilli couldn’t offer any limiting principle because there wouldn’t be any reasonable way to draw such a line in case the mandate is upheld. And he’s smart enough to know it.

Steven Den Beste on March 27, 2012 at 6:46 PM

Verrilli couldn’t offer any limiting principle because there wouldn’t be any reasonable way to draw such a line in case the mandate is upheld. And he’s smart enough to know it.

Steven, yes, but if the Dems were going to send him on a fool’s errand, they could have at least provided him with a path into and out of the woods, no matter how bogus. Remember, after all, the president is a “constitutional scholar.”

Howard Portnoy on March 27, 2012 at 7:02 PM

Howard, his argument was “You (SCOTUS) have already long since tossed all limits on the commerce clause into the ashcan, so why are you suddenly getting religion?”

And in fact, given the truly horrible decision in Raich, that’s pretty much true.

Anyway, what else was he going to say?

Steven Den Beste on March 27, 2012 at 8:14 PM

Howard, besides which: Obama wants to lose on the issue of the individual mandate. The real battle will be on severability.

For Obama, the ideal outcome is that the mandate gets struck down but the rest of the law remains in effect. That would kill or drive out all the insurance companies, and then the Progressive congress would reluctantly, reluctantly implement “single payer” — which was always what they really wanted.

Steven Den Beste on March 27, 2012 at 8:28 PM

Anyway, what else was he going to say?

Steven Den Beste on March 27, 2012 at 8:14 PM

1/ He would say “Put a sock in it, Steven”. Raiche has ZERO to do with this case. Zero.

2/ Single payer was NOT part of the law for the very fact that IT is automatically unconstitutional. There is no such thing you whiny gimp.

3/ You are ignorant about insurance of any kind. They should make everyone take an IQ test before allowing them to post here on HA.

DevilsPrinciple on March 27, 2012 at 9:49 PM

Dude, lay off Steven. He is a fantastic thinker, but you wouldn’t know that because you never read his political blog.

So stop before you embarrass yourself further.

BlameAmericaLast on March 28, 2012 at 1:56 AM

bho probably doesn’t know what a ‘brief’ is?

letget on March 27, 2012 at 5:17 PM

Sure he does, letget! They’re the kind of underwear President Clinton doesn’t wear!

GWB on March 28, 2012 at 9:19 AM

This shouldn’t surprise anyone; liberals are notorious for over-selling their expertise to one another.

stevehorth on March 28, 2012 at 10:49 AM

Katyal’s academeic credentials:

Katyal graduated in 1991 from Dartmouth College, where he was a member of Sigma Nu fraternity and the Dartmouth Forensic Union. In 1990 and 1991, while a member of the Dartmouth Forensic Union, he reached the semi-final round of the National Debate Tournament, college’s national championship tournament. He then graduated from Yale Law School in 1995 At Yale, Katyal studied under Akhil Amar and Bruce Ackerman, with whom he published articles in law review and political opinion journals in 1995 and 1996. After graduating, Katyal clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and then Supreme Court Justice Stephen Breyer.

Now, I know this doesn’t hold a candle to Mr. Portnoy whose MA in English was from Duquesne (not to be confused with Duke) but it’s not bad.

plewis on March 29, 2012 at 2:12 PM

plewis on March 29, 2012 at 2:12 PM

Your information about my academic background is incorrect (my masters, in mathematical linguistics, is from NYU), but that mistake pails next to the utter vapidity of your argument. By the same logic (if it can called that), no sportswriter can put forth a valid opinion unless he’s played sports, no arts writer can comment on a gallery show unless he paints, and on ad infinitum.

Plewis (not to be confused with a human being)

Howard Portnoy on March 29, 2012 at 4:46 PM

That shows you can go to the best schools and still be a dumbass. Was that your point, “Plewis”?

BlameAmericaLast on March 30, 2012 at 9:14 PM