Don is someone I worked with and respected, so I will leave dissection of his efforts to those who are farther removed and better schooled in Supreme Court procedure. But I will say this: having spent a year of my life getting paid to defend the ACA as the White House spokesman on health care, I feel for the guy. Health care reform is very much worth defending, but going about that defense is where things get, well, difficult.
It would have been easy for Verrilli—or any of us—to explain single-payer health care. “Look,” we could have said, “the government is paying for everyone to have coverage.” End of story. But single-payer is not what our brilliant, world-leading political system gave us. What it gave us is essentially a halfsy—an extraordinarily confusing patchwork in which some novel legislative mechanisms are used to induce individuals, businesses, insurance companies, and states into doing things that add up to concrete good.
I think this is a bit of a myth. For one thing, I don’t think the health-care law in general, or the individual mandate in particular, is hard to defend. Here’s Mitt Romney making the case for his version of it:
And I certainly don’t think it’s less easy to defend than single payer. If single payer were such an easy sell, it wouldn’t have been beaten back every time it’s been tried on either the state or national level. While the policy is simple in theory, and appealing when framed in certain ways, it gets a bit tougher to defend when the majority of Americans who are happy with their current insurance begin asking why you’re taking what they have away from them.
But for all that, I think Cherlin’s difficulties as a spokesman shed real light on Verrilli’s performance on Tuesday. Cherlin and Verrilli faced the same problem: It’s very hard to defend anything when your opponents choose the questions. Cherlin, as spokesman, didn’t get to choose the questions he was asked. And Verrilli, as solicitor general, had even less autonomy: Not only didn’t he choose the questions, but he couldn’t do the spokesman’s trick of dodging them.
Let’s stipulate that Verrilli didn’t deliver a command performance yesterday. Indeed, he was, at times, unbearably awkward, taking long sips from his glass of water and coughing nervously. Nevertheless, his biggest problem was that, right out of the gate, Justice Anthony Kennedy -- the man who Verrilli was there to convince -- basically asked when the Affordable Care Act stopped beating its wife.
Kennedy’s first question was, “Can you create commerce in order to regulate it?” which, while not exactly friendly, wasn’t so bad. But his second question was different:
Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
Well, once you’ve assumed all that, you’ve pretty much assumed away the case. Verrilli could have responded with more clarity, passion, and force. That failure is on him. But he who frames the question tends to win the argument. And what was really important in Tuesday’s arguments was that Kennedy bought into the frame proposed by opponents of the bill. Verrilli was there to persuade Kennedy, and Kennedy was essentially arguing the other side of the case.
Within that context, Verrilli could have performed better. Perhaps even much better. But he was never going to come out looking great, because his performance was always going to be judged based on how persuaded Kennedy seemed to be.