The ObamaCare Argument – The Third and Final Day

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.”