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In Defense of Don Verrilli: Why the Solicitor General Actually Did a Great Job Defending Obamacare

As Tuesday’s oral argument on the Affordable Care Act’s individual mandate came to a close, several commentators faulted Solicitor General Donald Verrilli’s performance. Particularly harsh was CNN’s Jeffrey Toobin, who called the two hour argument “a train wreck for the Obama Administration.” But having sat through the oral argument and re-read the transcript, I have to dissent. Especially on paper, Verrilli’s performance appears quite strong—and possibly more effective than that of his opponents, Michael Carvin and the justly renowned Paul Clement.

Here’s why. Making a persuasive legal argument in a hotly contested case is just like making a persuasive political argument in a confrontational campaign. The key is simple: Come up with a clear, smart message, and stay on it, without sounding so inflexible or extreme that crucial centrist voters are alienated. By that standard, the solicitor general registered well—indeed, he got stronger and stronger as the two hours passed. The transcript shows Verrilli constantly returning to the same four-point algorithm:

1. The argument by opponents of the ACA mandate—that the mandate is not a “regulation” of commerce but a diktat to passive bystanders to enter commerce—is inaccurate, because people are already engaged in the health services market.

2. The opponents concede that Congress can regulate that market by imposing an insurance coverage mandate when patients show up at a doctor’s office or hospital emergency room.

3. That alternative solution is an unworkable sham. 

4. Hence, striking the mandate bars Congress from achieving universal coverage and, in particular, ensuring affordable coverage for persons with pre-existing medical conditions, through any means that preserves private insurance markets.  

In Tuesday’s oral arguments, Verrilli stayed firmly on that message, insisting on the uniqueness of the insurance market, and managing to avoid getting drawn by conservative justices into diversionary debates about hypothetical mandates for cell phones (Chief Justice Roberts), burial insurance (Justice Alito), and broccoli (Justice Scalia).

Although Verrilli’s adversaries often appeared more forceful than Verrilli, their arguments actually reinforced his message. Both Carvin and Clement validated Verrilli’s observation that the opponents would permit Congress the option to impose a mandate that insurance companies must cover patients in an E.R. In Clement’s words, this would be a “high-risk pool.” Transparently, such a “high-risk pool” would constitute, not insurance in any true sense, but simply a fund for treatment of uninsured, very sick or injured persons. This “solution” would re-label rather than remedy the cost-shifting status quo the ACA seeks to correct.

Most promisingly, at times both Kennedy and Roberts—the two justices that the administration must persuade to rule in the mandate’s favor—appeared to echo Verrilli’s argument. Justice Kennedy warned both Clement and Carvin that the uninsured “are creating a risk that the market must account for.” In a similar vein, Roberts reminded Carvin that “the government’s position is that almost everybody is going to enter the health care market” on their own. 

Minutes from the end of the session, Kennedy observed that, contrary to Carvin’s claim that the uninsured were irrelevant to the cost-shifting problem, “the uninsured young person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” When Kennedy added, “That’s my concern in this case,” Carvin blurted warily, “I may be misunderstanding you, Justice Kennedy. I hope I’m not.” And with good reason. Kennedy here appeared to indicate that this “concern” was his own, and not merely an Obama administration argument.

For his part, Verrilli used his concluding four minutes of rebuttal to deftly exploit this opening. Calling “Mr. Clement’s point-of-sale high risk pool” solution “utterly unrealistic,” he invited the Court to:

Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be unfathomably high. That will never work. Congress understood that. It chose the means that will work, the means that it saw worked in the States and in the State of Massachusetts, and that it had every reason to think would work on a national basis.

Last year, by framing the debate this way, Justice Department lawyers persuaded famously conservative appellate judges Jeffrey Sutton in Ohio and Laurence Silberman in the District of Columbia to uphold the mandate. In light of those surprising victories, that approach clearly seems President Obama’s best shot at winning a majority of the most conservative Supreme Court in nearly a century. On Tuesday, his lawyer fired that shot well. Indeed, Obama’s political team might want to take some lessons from Verrilli’s compelling defense of his boss’s signature accomplishment. It’s the best argument they’ve got, for an issue they can’t avoid.

Simon Lazarus is Policy Counsel to the National Senior Citizens Law Center.