Some prominent legal scholars say a series of tactical decisions by President Obama’s legal team may have hurt the chances of saving his landmark health-care legislation from being gutted by Supreme Court conservatives.
The warnings are a preview of the finger-pointing certain to ensue if the law is overturned. That could come sometime this week, when the justices are expected to decide on the constitutionality of the health-care law and its centerpiece provision mandating that all Americans purchase insurance or pay a penalty.
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.”
“The challengers did a great job of framing the case so they could go downhill and the government had to go uphill,” Elhauge said.
Several senior administration officials said in separate interviews that they considered all of the potential arguments, settling on the frame they felt seemed most likely to gain five votes on the court. They said they worried that citing the 18th-century mandates as precedent was unlikely to persuade the justices, particularly given that none of the earlier laws offered a perfect parallel to the health-care law. The shipping law applied to people already in that line of work, not all Americans, while the musket law fell under a different clause of the Constitution.
“There are always people in the academic world who think about clever arguments that one might make here and there,” one senior official said. “But all of those arguments were thoroughly analyzed, vetted and discussed.”
Administration officials who were interviewed spoke on the condition of anonymity in order to describe internal thinking. To back up one of their decisions, they pointed to a lower-court opinion written by a conservative judge slapping down the musket mandate as a useful argument.
“To argue that Congress’s power to enlist individuals to defend the country’s borders proves that it may enlist individuals to improve the availability of medical care gives analogy a bad name,” wrote Judge Jeffrey Sutton of the 6th Circuit Court of Appeals. “There is a difference between drafting a citizen to join the military and forcing him to respond to a price quote from Aetna.”
Other scholars dismissed the critics’ complaints as mere musings from the ivory tower.
“Monday-morning quarterbacking is always easier than actually playing the game,” said Harvard University law professor Laurence Tribe, who has advised the administration on legal issues. Tribe said there were “weighty considerations” that no doubt led Verrilli to avoid the apparent early precedents, though Tribe added that he “probably” would have included them.
David Strauss, a University of Chicago law professor who worked in the solicitor general’s office in the 1980s, said Verrilli and his team chose strong arguments. “Litigation isn’t a matter of carrying out your academic theories,” he said.
Still, the question of whether to cite Congress’s work from the 1790s and emphasize allusions to the founders sparked intense debate among the lawyers working last year to frame the defense, according to people familiar with deliberations.
The musket law was included in several lower-court arguments submitted in the months before Verrilli was sworn into office in June 2011.
Until then, the administration’s health-care legal strategy had been led by Neal Katyal, who took over as acting solicitor general in 2010 to replace Elena Kagan, who had been named to the Supreme Court.
Katyal had emphasized several originalist arguments that were eliminated or toned down as the legal defense moved to the Supreme Court phase under Verrilli.
One such argument harked back to the Articles of Confederation to describe health care as a national concern worthy of regulation by Congress. Jeffrey Rosen, a George Washington University law professor who analyzes legal affairs for the New Republic, speculated in a March essay that Verrilli may have opted against using it “because he viewed it as too conservative in its attempt to persuade the conservative justices that the framers of the Constitution would have allowed the regulation of health care.”
Officials vehemently disputed the claim. The strategy, one official said, came from “months and months” of thinking about the nine justices, court precedent and the commerce clause.
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.