Solicitor General Donald Verrilli’s performance before the court has been widely panned as “weak and ineffectual.” Even liberal commentator Jeffrey Toobin called Verrilli’s arguments “a train wreck for the Obama administration.”
But to judge the full measure of just how badly the government did in the last three days, all you have do is read the administration’s statement to the press. In it, White House Counsel Kathryn Ruemmler claims that Verrilli “ably and skillfully represented the United States before the Supreme Court.” The surest sign that your lawyer has not done a good job is when you have to issue a statement defending his performance.
Of course, Verrilli may have done the best he could, given what he had to work with. The government’s constitutional justification for ObamaCare was extremely weak. In fact, it was without precedent. Even under the expansive view of the Commerce Clause taken by the Supreme Court over the last 70 years, the Court never held that Congress could compel individuals to engage in commerce – only that it could regulate them once they were engaging in commerce.
This morning Paul Clement, representing the challengers, argued that the Supreme Court should strike down the entire law. The liberal justices were clearly hostile to the claim that if the individual mandate is unconstitutional, then the law fails in its entirety. Justice Sotomayor interrupted Clement’s opening almost immediately to ask him why the Court should strike down the entire law if only one provision of it is unconstitutional. Shouldn’t the Court presume that the law is not severable if there is no severability clause? Clement cautioned that would be inconsistent with the court’s prior practice and precedent.
Other justices, including Justice Kennedy and Chief Justice Roberts, asked numerous questions about the complexity of the law designed by Congress and whether it would still achieve its objective of “affordability” and “patient protection” without the individual mandate. Clement argued that it would not, and that the mandate was essential to the law – it was the funding mechanism for many other requirements such as the community rating and guaranteed issue policies forced on health insurance companies. Without it, ObamaCare would be a “hollow shell,” Clement maintained, and the economics of the plan fall apart.
The conservative justices were obviously concerned that if they left parts of the law in place, the votes would not be present in Congress to fix it. From the “Louisiana Purchase” to the “Cornhusker Kickback,”so many “venal” deals (as Justice Scalia described at least one of them) were struck to get the votes needed for final passage, “legislative inertia” would prevent remedying any problems with the law.
Justice Ginsburg voiced disagreement, saying that the Court faced “a choice between a wrecking operation…or a salvage job.” She claimed that “the more conservative approach would be salvage rather than throwing out everything.” Of course, Justice Ginsburg has never taken the “conservative” approach in her entire time on the bench. Here she might, since it would be the only way for her to achieve the policy outcome she wants. To Justice Kagan’s claim that this was “a perfect example where half a loaf is better than no loaf,” Clement said that this was a situation “where half a loaf is actually worse.”
The conservative justices were also concerned that striking the mandate but leaving other parts of the law in place would bankrupt the insurance market. Deputy Solicitor General Edwin Kneedler, who was arguing the severability issue instead of Donald Verrilli, disputed that contention. That was too much even for Justice Sotomayor (who is clearly going to vote to uphold the law), since that claim ignored “the congressional findings and all of the evidence Congress had before it that community ratings and guaranteed issuance would be a death spiral…without minimum coverage.”
Justice Scalia scolded the Deputy SG at the idea that the Court should go through every part of the 2,700 page law to decide which particular provisions should be kept. He clearly thought that was impractical. Justice Ginsburg made the half-joking suggestion that the government sit down with the challengers and try to agree on which provisions are peripheral, which Kneedler said could not be done. Scalia quipped that they could issue a conference report just like congressional committees do when they are trying to iron out differences between the Senate and House on a bill.
Kneedler argued that the doctrine of “judicial restraint” calls for not throwing out the entire law. But Justice Kennedy pointed out that if the Court struck down only part of the law, and the result was increased risk for insurance companies “that Congress had never intended… we would have a new regime that Congress did not provide for, did not consider [and it could] be argued at least to be a more extreme exercise of judicial power than…striking the whole [law].”
Clement told the Court that “the choice is to give Congress the task of fixing this statute…after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate.” He did not think it was “a close choice.” The entire law “should fall.”
The afternoon session started at 1:00 and was again argued on behalf of the government by Solicitor General Verrilli. It concerned the new Medicaid spending conditions imposed on the states by ObamaCare. This question is murkier than the individual mandate. But if the Court finds the individual mandate unconstitutional and strikes down the entire law, they can avoid the Medicaid question in its entirety.
Verrilli ended his argument with a startling claim – that the provisions of the ObamaCare law actually “secure the blessings of liberty.” He said with a straight face that “for the Court’s obligation to ensure that the federal government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question.”
Paul Clement could not let Verrilli get away with that absurd claim. He ended the day by saying that while he appreciated what the SG had said, he:
would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.
I can’t think of a better ending to three days of arguments in the Supreme Court over fundamental issues of liberty and the power of the government in what is surely the most important case heard by the Court since Brown v. Board of Education.