Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.
Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.
The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wade abortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.
To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.
“It was an ace in the hole,” said Akhil Amar, a Yale University constitutional law scholar. “You’ve got George Washington signing a bill that helps you. Why wouldn’t you use it?”
Another critic, Harvard University law professor Einer Elhauge, has questioned why the administration did not point the Supreme Court to some early health-care mandates adopted by early Congresses without any objection from the framers, including laws requiring ship owners to buy medical insurance for their seamen and for the seamen to fund hospital insurance for themselves.
Elhauge said he agreed with the government’s other arguments. But, he said, by failing to directly contest the premise that a purchase mandate was unprecedented, the government put itself in the more difficult position of defending what incorrectly looked like “an exotic new creature.”