Even Mother Jones seems to agree that today’s discussion at the Supreme Court went quite poorly for Obamacare:
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.
Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.
“What is left?” Justice Antonin Scalia demanded of Verrilli, “if the government can do this, what can it not do?” Verrilli’s response to this basic and most predictable of questions was to rattle off a few legal precedents.
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.
Of course, this does not at all mean that Obamacare will be struck down, only that if it is upheld it will be because some Supreme Court justice (Kennedy, perhaps) came up with a novel theory not offered at the hearing.
- Obamacare Supreme Court Case Day One – It’s a Penalty and a Tax! (lonelyconservative.com)
- ASSOCIATED PRESS: ObamaCare Has Disastrous Day In Court. “The fate of President Barack Obama’s h… (pjmedia.com)
- Is Obamacare Going Down? (powerlineblog.com)
- Fail: Liberal SCOTUS Justices Resort to Helping Obama’s Solicitor General Argue in Favor of Obamacare (bluegrasspundit.com)
- Liberal Legal Analyst: “This Was A Trainwreck For Obama” ObamaCare “Looks Like It’s Going To Be Struck Down” (azpundit.com)
- Breyer laughs at Obama lawyer (blogs.dailymail.com)
- Donald Verrilli Makes the Worst Supreme Court Argument of All Time (motherjones.com)