So it looks like Solicitor General Verrilli was shredded
by the Supreme Court Justices yesterday on the question of the federal health insurance purchase mandate. Many liberal journalists are shocked
at his inarticulateness. Liberal journalists should blame themselves a little. The arguments advanced for the federal health insurance purchase mandate often came down to some combination of "only mean people oppose nice President Obama's law" or "all really smart and honest people all agree with smart and honest me that Obamacare is like so totally constitutional." Dalia Lithwick's tantrum
is an example of the first kind of argument and Jonathan Chait's rant
is an example of the second. Lithwick's post is less interesting. It doesn't contain any actual arguments about why the Obamacare mandate is constitutional. She mostly just says that only a horrible person would even think about considering whether such a wonderful law as Obamacare is constitutional. I wonder why Solicitor General Verrilli didn't go with that strategy during oral arguments.
Chait's post is a more telling example of how self-congratulation and group think can weaken one side's argument. Chait writes that the health insurance purchase mandate must be constitutional because health care is interstate commerce and the federal government must therefore be able to compel an individual to contract with a private firm to purchase a product they do not want. Chait specifically takes on the activity/inactivity distinction. Chait argues that the government does regulate inactivity in that it mandates vaccinations and sometimes compels military service. The federal government derives the power to draft from the power to raise armies and navies rather than the interstate commerce clause. The states (not the federal government) have the power to compel vaccinations from the general police power that the federal government lacks. That is why the Supreme Court is very unlikely to strike down the state-level Romneycare insurance purchase mandate and more likely to strike down the federal-level Obamacare insurance purchase mandate (one can imagine circumstances where the federal government mandates vaccinations for certain classes of citizens - soldiers for instance.)
The problem with all of this wooly thinking is that it leaves one badly prepared when one steps out of the bubble of the likeminded. Imagine if Solicitor General Verrilli had said something along the lines of "Well of course the interstate commerce clause gives Congress the power to force people to buy health insurance. Congress has the power to draft don't they?" Even the liberal Justices would have laughed at him in horror and disgust. Solicitor General Verrilli couldn't say "Well sure transportation is an interstate industry and everyone participates in transportation markets, so therefore Congress has the power to mandate that every American contract with General Motors to buy a Chevy Volt or else pay a civil penalty." That stuff works when you are around the campfire with people who really really want the Supreme Court to uphold Obamacare. It works less well when you are in front of Supreme Court Justices who are under the impression that the Constitution created a federal government of limited powers.
So Solicitor General Verrilli did his pitiful tap dance about how the health care market is "different" and how the federal government has the power to compel you to buy health insurance but not a cell phone or burial insurance. And the result was that the more conservative Justices pounded him into the ground. The problem wasn't Verrilli. It was the quality of his arguments. And that leaves Lithwick and Chait to explain that only meanies and poopyheads disagree with them.
Before you laugh at Lithwick and Chait, keep in mind that Justice Kennedy might find their arguments (which are attacks on the status of those who disagree with them) more convincing than the constitutional arguments of the Solicitor General.