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In health care and immigration cases, vindication for Verrilli

28 June 2012
The National Law Journal
Toward the end of his much-criticized oral argument over the health care individual mandate on March 27, Solicitor General Donald Verrilli Jr. made a spirited pitch for a little-noticed argument in favor of the law. He said the insurance requirement could be justified under the enumerated power of Congress to "lay and collect taxes."

Even though Congress and the Obama administration shied away from using the "tax" label to describe the penalty for not buying health insurance, Verrilli insisted that "it was clear they [Congress] were exercising the tax power."

Several justices were clearly not buying that rationale any more than they were embracing the more controversial Commerce Clause argument. It became a minor part of what some commentators quickly called Verrilli's "train wreck" of an argument.

On Thursday, that argument looked a lot better, because the "taxing power" rationale carried the day before a divided Supreme Court. And it gave Chief Justice John Roberts Jr., the key fifth vote, a way to uphold the mandate without expanding federal commerce power.

The ruling, paired with Monday's victory for the Obama administration in the Arizona v. United States immigration case, has vindicated Verrilli's role as oral advocate. And it reaffirms the truth that oral arguments should not be critiqued like Broadway plays. Verrilli's low-key style did not hurt him nearly as much as many commentators thought it would.

"Don elevated the taxing power argument in the oral argument and in the briefing," said Mayer Brown partner Andrew Pincus, a veteran of the solicitor general's office. "It just shows that when you look at the oral argument as a debate, that doesn't capture what really goes on." Oral argument gives an advocate a chance to plant unnoticed seeds in justices' minds that can come in handy later during internal deliberations.

The final week of the Court's term was a triumphant cap to an otherwise mixed term for the solicitor general's office. The Court has been hostile to a number of positions taken by the Obama administration on issues ranging from the "ministerial exception" to workplace regulation by the Equal Employment Opportunity Commission (in Hosanna-Tabor v. EEOC) to Clean Water Act regulation (in Sackett v. EPA) and GPS surveillance (in United States v. Jones.) The administration scored wins in the copyright case Golan v. Holder and on qualified immunity for Secret Service agents in Reichle v. Howards.

But for now, Pincus said, Verrilli is entitled to feel that he has served his client well. "When you are a lawyer and bring victory on the issues most important to your client, it is a very good feeling."

Reprinted with permission from the June 28, 2012 edition of National Law Journal © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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