With lawyers like Solicitor General Donald Verrilli, ObamaCare supporters need no enemies
posted at 4:51 pm on March 27, 2012 by Howard Portnoy
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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