In another tactical shift, Verrilli added emphasis to the government’s argument that Congress’s taxing powers justified the mandate because the penalty for those who do not buy insurance, written into the internal revenue code, can be viewed as a tax. Arguing during an election year that the president supported a tax was a politically dicey — but legally wise — move, experts agreed.
At the same time, Obama’s lawyers chose not to file motions or make arguments that could have delayed the Supreme Court case into 2013 or 2014, well past the election. The government declined, for example, to seek a review by the full 11th Circuit Court of Appeals after a ruling by a three-judge panel.
Throughout the process, according to people familiar with the planning, Obama was keenly interested in how the arguments were shaping up.
White House counsel Kathy Ruemmler was in frequent contact with Verrilli, a White House lawyer before being named solicitor general, giving the president’s tacit blessings through brief-writing and “moot court” practice sessions — with White House lawyers occasionally taking part.
The president’s level of engagement is not surprising given the stakes for him. Still, the coordination with the solicitor general’s office was noteworthy — and largely unseen, with public attention focused on the noisy political debate over the legislation.
“In general, it would be unusual for the White House to get directly involved, but this is obviously an unusual case,” Tribe said.
And, at least when it comes to the reduced reliance on originalist arguments, it appears that strategy fit his philosophy.
In his 2006 book, “The Audacity of Hope,” Obama cites Justices Antonin Scalia and Stephen G. Breyer as two ends of a divide — with Scalia believing the understanding of the Founding Fathers must be followed and Breyer believing this original view “can take you only so far.” Obama wrote that he agreed with Breyer that the Constitution “is not a static but rather a living document and must be read in the context of an ever-changing world.”
Asked about the fate of his health-care law after the March oral arguments, Obama stirred controversy by borrowing another favorite line of argument from conservatives — saying the Supreme Court risked committing an act of “judicial activism” if it took the “unprecedented” step of overturning the law.
The next day, Obama sounded more like the old constitutional law scholar than the president, suggesting that the court’s tradition of exercising “significant restraint and deference to our duly elected legislature” should put the burden of proof on “those who would overturn a law like this.”
Obama was clearly pleased with his solicitor general and the legal strategy they produced.
After the oral arguments, the president dispatched top aides to compliment the much-criticized Verrilli for “ably and skillfully” representing the government. Then, Obama personally called Verrilli to thank him for a job well done.