POLITICS MARCH 29, 2012
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As Tuesday’s oral argument on the Affordable Care Act’s individual mandate came to a close, several commentators faulted Solicitor General Donald Verrilli’s performance. Particularly harsh was CNN’s Jeffrey Toobin, who called the two hour argument “a train wreck for the Obama Administration.” But having sat through the oral argument and re-read the transcript, I have to dissent. Especially on paper, Verrilli’s performance appears quite strong—and possibly more effective than that of his opponents, Michael Carvin and the justly renowned Paul Clement.
Here’s why. Making a persuasive legal argument in a hotly contested case is just like making a persuasive political argument in a confrontational campaign. The key is simple: Come up with a clear, smart message, and stay on it, without sounding so inflexible or extreme that crucial centrist voters are alienated. By that standard, the solicitor general registered well—indeed, he got stronger and stronger as the two hours passed. The transcript shows Verrilli constantly returning to the same four-point algorithm:
1. The argument by opponents of the ACA mandate—that the mandate is not a “regulation” of commerce but a diktat to passive bystanders to enter commerce—is inaccurate, because people are already engaged in the health services market.
2. The opponents concede that Congress can regulate that market by imposing an insurance coverage mandate when patients show up at a doctor’s office or hospital emergency room.
3. That alternative solution is an unworkable sham.
4. Hence, striking the mandate bars Congress from achieving universal coverage and, in particular, ensuring affordable coverage for persons with pre-existing medical conditions, through any means that preserves private insurance markets.
In Tuesday’s oral arguments, Verrilli stayed firmly on that message, insisting on the uniqueness of the insurance market, and managing to avoid getting drawn by conservative justices into diversionary debates about hypothetical mandates for cell phones (Chief Justice Roberts), burial insurance (Justice Alito), and broccoli (Justice Scalia).
Although Verrilli’s adversaries often appeared more forceful than Verrilli, their arguments actually reinforced his message. Both Carvin and Clement validated Verrilli’s observation that the opponents would permit Congress the option to impose a mandate that insurance companies must cover patients in an E.R. In Clement’s words, this would be a “high-risk pool.” Transparently, such a “high-risk pool” would constitute, not insurance in any true sense, but simply a fund for treatment of uninsured, very sick or injured persons. This “solution” would re-label rather than remedy the cost-shifting status quo the ACA seeks to correct.
Most promisingly, at times both Kennedy and Roberts—the two justices that the administration must persuade to rule in the mandate’s favor—appeared to echo Verrilli’s argument. Justice Kennedy warned both Clement and Carvin that the uninsured “are creating a risk that the market must account for.” In a similar vein, Roberts reminded Carvin that “the government’s position is that almost everybody is going to enter the health care market” on their own.
Minutes from the end of the session, Kennedy observed that, contrary to Carvin’s claim that the uninsured were irrelevant to the cost-shifting problem, “the uninsured young person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” When Kennedy added, “That’s my concern in this case,” Carvin blurted warily, “I may be misunderstanding you, Justice Kennedy. I hope I’m not.” And with good reason. Kennedy here appeared to indicate that this “concern” was his own, and not merely an Obama administration argument.
For his part, Verrilli used his concluding four minutes of rebuttal to deftly exploit this opening. Calling “Mr. Clement’s point-of-sale high risk pool” solution “utterly unrealistic,” he invited the Court to:
Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be unfathomably high. That will never work. Congress understood that. It chose the means that will work, the means that it saw worked in the States and in the State of Massachusetts, and that it had every reason to think would work on a national basis.
Last year, by framing the debate this way, Justice Department lawyers persuaded famously conservative appellate judges Jeffrey Sutton in Ohio and Laurence Silberman in the District of Columbia to uphold the mandate. In light of those surprising victories, that approach clearly seems President Obama’s best shot at winning a majority of the most conservative Supreme Court in nearly a century. On Tuesday, his lawyer fired that shot well. Indeed, Obama’s political team might want to take some lessons from Verrilli’s compelling defense of his boss’s signature accomplishment. It’s the best argument they’ve got, for an issue they can’t avoid.
Simon Lazarus is Policy Counsel to the National Senior Citizens Law Center.
24 comments
I thought part of the free rider problem was that under guaranteed issue and community rating without discrimination against preexisting conditions the price of insurance purchased in the hospital bed would be exactly the same as the cost of purchase at any other time. That is the moral hazard. The quoted part of Verrilli's closing argument on this point seems to me to have entirely missed the point.
- ragbatz
March 29, 2012 at 2:32am
Oops. Retract that post. Misunderstanding mine, not General Verrilli's.
- ragbatz
March 29, 2012 at 2:49am
Thank you, Mr. Lazarus. Noah Feldman, of Harvard Law School, in his turn at arm chair advocate, advised Mr. Verrilli that the response to Roberts' and Kennedy's questions about "limiting principles" was easy: the individual mandate, to purchase insurance, increases the pool of insured, thereby reducing the average cost; and the insurer mandate, to cover pre-exsisting connditions, without the individual mandate, to purchase insurance, would cause insurance industry fail. I call this the bootstrap limiting principle: support one mandate, the individual mandate to purchase insurance, the mandate before the Court, with another mandate, the insurer mandate to cover pre-existing conditions, the mandate not before the Court. Or more to the point, the house of cards answer to Roberts' and Kennedy's questions. Yes, to his credit, Verrilli didn't succumb to traps like the bootstrap limiting principle. Or the trap of defining the limit to the government's commerce clause power to regulate business. I won't guess the outcome Mr. Lazarus expects, but I will repeat my own: CJ Roberts joins the majority to uphold the individual mandate, and writes the majority opinion significantly circumscribing the power of the federal government to regulate business under the commerce clause, handing Obama a nominal victory but a long-term defeat, as the "limiting principles" set forth by Roberts make implementation of ACA (and Dodd-Frank et al.) difficult at best. It's the political solution to a political dilemma, and precisely what the founders intended and what the first and greatest chief justice bequeathed to his successors, including CJ Roberts.
- rayward
March 29, 2012 at 7:22am
Transparently, such a “high-risk pool” would constitute, not insurance in any true sense, but simply a fund for treatment of uninsured How is that not insurance? If someone needs emergency medical care, someone else will front the expense. If that person cannot subsequently come up with the funds, the debt can be eliminated by bankruptcy. That's not particularly good insurance, especially since it doesn't cover anything that can prevent emergencies from developing, but how is that different from insurance? Now that everyone has emergency care insurance, it is straightforward that the government can say that you have emergency care insurance, now you have to pay for it.
- sighthnd
March 29, 2012 at 8:33am
Well, I hope Mr. Lazarus is correct, but I think Verrilli failed in his first obligation-- to take control of a hostile courtroom. It was an enormous failure of legal/political strategy. To take control of the courtroom, Verrilli needed to call out the Republican Justices on just exactly what they were doing. They were acting as Republican legislators debating the merits of one legislative approach against another, trying to instill a political defeat on a president they loathed. No doubt, this would have resulted in a good deal of acrimony from those very same Justices, but it would have become the headline story and would have put the Justices on notice that they are playing with fire.
- CABChi
March 29, 2012 at 10:30am
This is how Charles Fried describes Mr. Verrilli's treatment at the Court: "In most Supreme Court cases, which are not followed by all the media or inspire rallies in the Supreme Court plaza, the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case. That is what I am sure Solicitor General Donald Verrilli expected to do when he walked into the courtroom; he expected to do his job, which is to defend the constitutionality of an act of Congress (whatever he may thinks of it personally). What he encountered instead was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses. I know some were disappointed by Verrilli’s performance. What did they expect? He did his job and he did it very well. What Verrilli did not do is “rise” to the level of angry declamation coming at him from the other side of the bench. Nor would it have helped his case if he had. You know the old adage: Never argue with a cop—he’s got the gun and the power of arrest. It might have produced some more drama for the audio feed, but that would not have had an effect on the final outcome. He was not trying not to get voted off the island in this episode.” This is a disheartening description of what took place. Fried is no partisan liberal. He is a life-long Republican who served as Solicitor General under George H.W. Bush, and an advisor to the Harvard chapter of the Federalist Society. If someone is to be criticized for what took place at the Court, it is Chief Justice Roberts, for as Chief Justice it is his duty to maintain the decorum and dignity of the Court, something he failed to do.
- rayward
March 29, 2012 at 12:57pm
Apropos of nothing, doesn't "Simon Lazarus" sound like a character from a Dan Brown novel? Or the brother of Kirk Lazarus from "Tropic Thunder"? If we had a contest for "Best TNR Contributor Name", he would win in a landslide -- or at least by a 6-3 majority.
- wildboy
March 29, 2012 at 2:45pm
Rayward I liked your last paragraph, although the thought that the Chief Justice's job is to corral unruly judges is new to me. I'm hoping Kennedy and Roberts get some sense. Because if they think government can't impose on citizens to do something they are otherwise not doing, it will be a change so drastic that it will be fun to litigate all the possible new arguments that will apply.
- Nusholtz
March 29, 2012 at 4:03pm
I am not a lawyer, nor do I play one in a blog. As a plaintiff in a big trial, I was represented by a "plain-jane," unflashy, "stay on message," nose to the grindstone, young attorney who was held in contempt by several other very reputable and accomplished attorneys I know. The opposition attorney was a flashy, very experienced, very successful attorney. Our attorney nailed the case. We won. Whether this analogizes to the much larger situation, I have no idea.
- skahn
March 29, 2012 at 6:04pm
You write, "The argument by opponents of the ACA mandate—that the mandate is not a “regulation” of commerce but a diktat to passive bystanders to enter commerce—is inaccurate, because people are already engaged in the health services market," in desribing one of the SG's key themes. You missed the same issue that he did. The question was not whether they are or are not participants already in the market for health care. The issue was that they are not currently participants in the market the law requires them to enter, i.e., the market for health care insurance. Conflating the two might work with a lower court judge, but it does not pass muster with the minds of the justices and their clerks.
- horsefly
March 29, 2012 at 8:51pm
From rayward's comment it sounds like SCOTUS is a circus and a zoo and a huge disappointment, lacking dignity and respect for the American people. That's a shame. Regardless of what happens to ACA, it's a tragedy and a shame.
- Sophia
March 29, 2012 at 10:05pm
PS: is it really the role of any Supreme Court Justice to reveal "hostility?" Seriously, what the heck. Whatever happened to dispassionate argument on the issues?
- Sophia
March 29, 2012 at 10:07pm
I think the Administration makes a mistake in setting their goal as providing care for those with a Pre-Existing Condition, and using this to justify the Mandate. Those folks without insurance and a Pre-existing condition have made a mistake. They failed to buy their insurance when they should have, and can easily correct this by purchasing the medical services that adress their condition before trying to obtain insurance. They are locked out of the market as long as their condition requires medical service. I think they would have been better served by trying to demonstrate that this health insurance is predmoinantly provided by employers, and this restricts availablity to those who leave the job market for any time. This is more arbitrary towards their health and their ability to get coverage.
- CRS9TNR
March 29, 2012 at 10:07pm
Obamacare doesn't require anyone to buy health care insurance, horsefly. It simply imposes a modest penalty on those who refuse. And if they refuse to pay the fine, the worst that will happen to them is a loss of tax refunds, which they could easily avoid by reducing withholding. While some of those who "prefer" not to have health insurance (who are these people, anyway?) could pay out of pocket even for expensive cancer treatment, many are simply free-riding given that they know hospitals will not let them die on the doorstep.
- JEFF FREY
March 29, 2012 at 10:25pm
Jeff Frey- So, just what is it that the individual "mandate" is mandating?
- horsefly
March 29, 2012 at 10:58pm
No health care system will be "perfect." As technology improves, cost of possible cures and remedies increases exponentially. As understanding of consequences increases, the question of why didn't we live impeccable lives in terms of nutrition, exercise, avoidance of risk, etc and the contemplation of "just deserts for our youthful indiscretions" will weigh more and more heavily on our decisions of what should we do and what can we afford to do. We thought the "arms race" was bad. Welcome to the artificial arms and legs and hearts and livers and kidneys race. Oh the horror the horror and the spleen and the gall! I didn't control my blood pressure as well as I should have, though I could have done worse. I vividly recall my eye surgeon contemplating my eyes very thoughtfully and saying, "Your high blood pressure damaged your eyes. I am not sure I can safely do the cataract surgery." After a wait that seemed eternities he [didn't say -- this is artistic license] ~said~ "HELL, YES! I'M GOING IN!!" He did soberly and carefully decide to cut and a "four eyes" since first grade, I am now legal to drive without glasses, though I do wear glasses just to be on the safe side as they do help. Take that story to the 10,000 exponent and it will indeed be the horror the horror of perfect health care. Unless we develop Isaac Asimov's robot doctors in a likity-split hurry.
- skahn
March 29, 2012 at 11:23pm
Sophia: "Whatever happened to dispassionate argument on the issues?" If you ride with Santa in his sleigh on Christmas eve, you will hear the reindeer having such a cool, dispassionate argument as Santa listens benignly.
- skahn
March 29, 2012 at 11:27pm
I get tired of these idiotic comments about how it's your fault if you have an pre-existing condition. I have suffered from asthma since I was eleven years old -- should I have been thinking about (a) what I did when I was in my mother's womb, or (b) what I had been breathing in my first years of life when buildings still (late '50s) had asbestos and lord knows what, or (c) getting the medical "treatment" that apparently would have cured the generally incurable asthma? Have any of you heard of a congenital condition? I mean, I didn't do any of seattle's things such as getting tattoos or whatnot. It intensifies in cases of severe emotional crisis, so I guess I should avoid having any of those in my life.
- ironyroad
March 30, 2012 at 1:03am
Brilliantly stated. The number one tennis player 26 year old, from Serbia, Novac Djokovic , suffers from asthma . Some how in the last two years he has managed to deliver a supreme physical endurance condition. It is all mental control. Number two the 26 Spanish tennis player Rafael Nadal, is all power , his honesty and humility and seriousness is overwhelming. Number three is 31 years old, and Swiss , Roger Federer. Has been the super star for the last decade. Very serious, multitalented player, quite charming in conversations, a preferred guest of commentators. Number four, is 26 years old from Scotland, Andy Murray, excellent player but becomes emotional, has improved since old tennis king Ivan Lendl became his manager. Enjoyable in his interviews, good old Scottish charm, he is overwhelmed by the British press. You see England sort of created tennis, and like soccer, have failed to have a dominant star for a long long time. The English speaking commentators get irritated of dominance of Spanish players, in particular when Rafael Nadal was super champion in 2010, and his English was not like Roger Federer.
- JAIMECHUCH
March 30, 2012 at 8:22am
I finally read the transcript from day 2 of the hearings. I thought Verrilli did quite well (I wonder if there is a split between those who listened to the recording--or were in the courtroom--and those reading the words). I may be the only person in the country who came away feeling that Clement's presentation was built on an extraordinarily weak edifice. First it seemed to be based on a distinction between the health care and health insurance markets, a distinction he repeatedly insisted upon. He conceded that people without insurance are in the health care market, but denied they are in the health insurance market. The whole argument that the law forces unwilling people into commerce seems to ride on this distinction, that people who are in the health care market are not in the health insurance market unless they choose to buy health insurance. Yet he had no objections to laws require car owners to buy car insurance. But by this logic a car owner should be able to argue that while he chose to go into the car market he didn't choose to go into the car insurance market and therefore the government is trying to force him to engage into commerce against his will. I also found troubling his confusion of cost shifting with economies of scale, which he uses to argue that upholding the health care mandate would be a precedent for requiring people to buy cars--or broccoli. Choosing not to buy a car may increase the price of the car by reducing economies of scale, but it is not a form of cost shifting despite Clement's repeated use of that term to describe it. This is quite different than the cost shift occurs when uninsured patients are unable to pay their bill and the costs are passed on the insurance rates. I also read the transcript of the third day, as the justices discussed whether they should kill the whole bill or only parts of it. Very scary stuff. It felt like overhearing a gang of pyromaniacs as they debated whether to burn down one house or torch the whole village.
- brthompson
March 30, 2012 at 8:36pm
horsefly: "You missed the same issue that he did. The question was not whether they are or are not participants already in the market for health care. The issue was that they are not currently participants in the market the law requires them to enter, i.e., the market for health care insurance." Who gets to define the scope of the relevant market? Why isn't there the same argument regarding public accommodations laws? Some restaurant owners may choose to be in the "market" of serving some groups of people but not others; they do not wish to be participants in the market the law requires them to enter, i.e., the market to serve everyone. Who are we, or Congress, or the courts to second-guess the scope of the market that the restaurant owners deem themselves to be in? So shouldn't public accommodations laws also be struck down since we're "conflating" different markets, or at least drawing the circle of market activity larger than it needs to be? "Conflating the two might work with a lower court judge, but it does not pass muster with the minds of the justices and their clerks." That's really a slap at the many trial and appellate judges who have found no conflation at all. There are plenty of appellate judges who are easily qualified to be Supreme Court justices--perhaps more qualified than some of those presently on the Court. The selection of a justice is often a happenstance of age, timing of vacancies, ideological preferences of the moment, and political considerations given the makeup of the Senate for confirmation. And some of those trial and appellate clerks are pretty sharp, too. Competition for those jobs is intense.
- dsimon
March 31, 2012 at 12:42am
Horsefly is right; the law forces people to enter the health insurance market, not the healthcare market. This could have all been avoided had the lawmakers thought about it for more than two minutes. For those who cannot afford (or do not qualify) for health insurance, the government could provide vouchers, which would be financed by a small increase in taxes. This rather simple solution would have avoided all this drama, and actually done something to help people. Frankly, I am against the law; it still leaves over 20 million people uninsured, and it will cost an unbelievable amount of money. But the geniuses who run our country had to pass this Rube Goldberg monstrosity to show how smart they are. And the Democrats are the intelligent ones?? Sheesh.
- Doug75225
March 31, 2012 at 3:11am
Broccoli? I believe the government already does, through its laws, "force Americans to buy broccoli," in the sense that they are not allowed to steal it. Since hospitals are apparently now forced to let anyone walk in and take the broccoli (and since Americans seem, irrationally, to hate poor people), wouldn't it be good to establish a system that would let people have the elementary dignity of paying for it? Isn't that what the ACA does?
- RubyR
March 31, 2012 at 10:05am
Doug75225: "But the geniuses who run our country had to pass this Rube Goldberg monstrosity to show how smart they are." Was there any other proposal that could have passed? It was hard enough corralling enough Democratic votes for what is essentially a regulated private market solution as it was. Seem to me that it was either what we got, or nothing. And our current system wasn't sustainable. What we got isn't great, but it's a start. Nor do I think vouchers would solve the problem. The vouchers were not sure to be used, so some could continue to opt-out with no penalty. If the vouchers were sufficient to get everyone to enroll, then they're no different from the subsidies already in the law. Vouchers might avoid the constitutional question, but I don't see much of a difference from a policy perspective.
- dsimon
April 1, 2012 at 2:38pm