When I used to work for a major aerospace company, and we were writing proposals to the government, at some point during the process, after we had what we thought was a good first draft, we would bring in what we called a “red team.” This was a group of people, both within the company and hired outside consultants, who understood the mindset of the business prospect and whose job was to put on their “customer hats” and read the proposal as they imagined that the government customer would read it (I imagine the same applies to private customers in the commercial world as well). The purpose was to force us to break out of our insular mindset, and to address legitimate issues that would be raised in the mind of the customer about both our proposal and that of our competition.
Having seen the transcripts of Tuesday’s hearing before the Supreme Court of the United States, I can only conclude that such a concept — testing their arguments against those of their political opponents — not only never occurred to the solicitor general or his defenders in the media, but that the very notion that their arguments had any flaws never crossed their minds.
In fact, even Mother Jones said that it was a judicial disaster for the government:
Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.
…Justice Samuel Alito asked the same question later. “Could you just -— before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.
The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything -— (say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.
It apparently never occurred to him that he might be challenged on these issues. Why was he so unprepared?
For months we’ve been hearing from the usual suspects in the MSM about how ludicrous was the notion that it was unconstitutional for the federal government to compel someone to purchase a product, as though proponents of the proposition were advocating the legitimacy of slavery, or the notion that the government couldn’t prevent someone from growing wheat for their own use on their own land, or that it couldn’t prevent an individual from growing marijuana to treat her own cancer.
As evidence for their scoffing, they pointed out how that great constitutional scholar Nancy Pelosi was incredulous at the notion that there could possibly be an issue with it, or the more honest Democrat congressman (who somehow inexplicably later lost his election) who didn’t even think that it mattered. They also pointed out the sophisticated legal argument that it must be constitutional, otherwise its proponents would have actually put forth legal arguments supporting the case:
That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.
Could there be a more airtight defense? Perhaps, if one had a sieve.
All of this is evidence of the media/academic cocoon in which so many of these commentators live. It is a world in which it is unimaginable that Wickard v. Filburn may have been wrongly decided, in which there may actually be limits to federal power. It is unimaginable that the great solons on the Hill — Pelosi, Reid, Dodd, Frank — could possibly write a bill which might actually be unconstitutional despite its hundreds of pages that not one person read, and that we couldn’t possibly know what was in it until they passed it.
As a specific example of how completely gobsmacked they were, read “legal analyst” Jeffrey Toobin’s reaction to the hearing:
“This law looks like it’s going to be struck down,” he said. “I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”
Shocking, Jeffrey, we know. Just shocking.
Shocking, that is, to anyone completely unfamiliar with the founding document and the intent of the Founders. Sadly, this includes most people in the traditional media, on which too many continue to rely for their analysis. The White House could have avoided, or at least mitigated, this disaster by hiring the smartest opponents of the law to come in and do a moot court exercise against them, in order to prepare their advocate in advance. But, whether due to arrogance, incompetence, or both, it did not.
This week’s events at the Supreme Court should be a torpedo below the waterline to the credibility of those who have been telling us about the Constitution, and those who determine the constitutionality of the swill that is generated in Congress. A media organization that wanted to survive the coming tsunami of fact-checking from those in the know, who with social media are increasingly becoming more known, might want to hire a “red team” to give them the bitter truths they need to survive.
But because both they, and the administration that they protect, remain cocooned, it may take another few hits.