The Importance of Simplicity: Solicitor General Verrilli’s Oral Argument

The media is spilling a lot of ink on the subject of Solicitor General Donald Verrilli’s uninspiring oral argument in yesterday’s Supreme Court oral argument regarding the Affordable Care Act. On the flip-side, Elie Mystal thinks Verrilli faced impossible odds and we should stop criticizing him for failing to magically transform Scalia into Obamacare’s #1 cheerleader.

After pouring over the transcript, it seems to me that Verrilli just failed to appreciate the power of simplicity. His strategy wasn’t actually all that bad, just his execution. The places where he stumbled tended to be on questions that the government has no interest in answering. The Justices pressed for a “limiting principle” to hem in the extent of the commerce clause. To do this, the conservative Justices invented a litany of laughable examples such as burial insurance or broccoli and asked whether they could be mandated under the commerce clause. The government doesn’t want to reach that question and hamstring future lawmakers, but Verrilli tried to argue the nuts and bolts of these examples with Justices who had no interest in listening. Tactically, he should have consistently stuck to “if the failure to participate in those markets represented billions in lost revenue for state governments and ever inflating burdens on other market participants then sure, but I’m not here to argue about markets that could influence interstate commerce, but markets that do conclusively influence interstate commerce.”

It’s often mocked, but Justice Potter Stewart’s famous quote from Jacobellis v. Ohio about pornography is a powerful moment in Supreme Court jurisprudence. Justice Stewart said of the line between free speech and pornography:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Health insurance is interstate commerce subject to federal regulation and Verrilli weakened his presentation by trying to dance around that. The former Solicitor General during the Reagan administration, Charles Fried, put it best “Health care is interstate commerce. Is this a regulation of it? Yes. End of story.

At the end of the day, these arguments are not going to turn this case, but the failure to create a quotable, powerful defense of this law might. Justice Kennedy has shown more willingness to swing with popular opinion than other Justices and the strength of the popular narrative around this law is critical to swaying his opinion. Verrilli failed to provide that stirring defense and we’ve already seen the RNC turn Verrilli’s argument into an attack ad. More than any technical legal issue, the fact that this ad can be made is Verrilli’s real failure.

 

2 comments for “The Importance of Simplicity: Solicitor General Verrilli’s Oral Argument

  1. Joet
    March 29, 2012 at 11:40 am

    The problem is that Verrilli specifically argued that “[t]his is a law that regulates the method of payment for services.” Arguing that the law simple regulated health care and health care is interstate commerce would have been disastrous because it blatantly maintains that the government has unlimited power under the commerce clause. If they can force you to buy insurance simply because the health care market is interstate, they can force you to buy a plane ticket, car, etc. because those markets are also interstate. The government should thank its lucky stars Verrilli didn’t make such a reckless argument as this.

    I would have love to hear Fried make that argument before the SCOTUS, the Justices, including Sotomayor, would have cooked him alive.

  2. Andrew
    March 29, 2012 at 12:11 pm

    Conservative Judge Laurence Silberman made the best argument in the D.C. Circuit opinion:

    “We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.”

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