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.