|Did Perry Mason stutter?|
By the last of three days of oral arguments at the end of March – which now seems like years ago after yesterday’s ruling – at least one verdict was in; Paul Clement, the silky smooth attorney representing the plaintiffs challenging the Constitutionality of ObamaCare, wiped the floor with the hapless Solicitor General, Donald Verrilli. It was Verrilli who was charged with the considerable task of defending what appeared to be the indefensible. Even the liberal commentariat was robust in its criticism of the Sad Sack SG following his performance. He seemed ill prepared and unsuited to the moment, seemingly overwhelmed by the momentousness of his task. Channeling Albert Brooks from the movie “Defending Your Life”, Verrilli stammered and stuttered his way through oral argument, especially the Opening Statement. He could not muster even a weak single off the easily thrown softballs of Justices Kagan, Sotomoyor and Breyer, and appeared feeble at the plate against the sinkers and curveballs expertly and gleefully thrown by Justices Kennedy, Scalia, Alito and, believe it or not, Chief Justice Roberts. You could almost feel sorry for poor Verrilli; if you had been in the room with him when he presented his opening statement, as a fellow human being you would have been gazing at the floor to spare him the embarrassment.
Yet still, there was some indication that this may not be the throwdown it appeared at first blush. There were hints that we could be witness to an historic bait and switch by Chief Justice Roberts. On Day One, the Court entertained the arcane question whether, if the individual mandate was deemed a tax, would federal law prohibit a lawsuit until the actual tax was imposed? Since the provisions regarding the mandate and the penalty are not effective until 2014, this could theoretically delay the Court’s consideration and determination of the lawfulness of this ‘tax’ until that time. Eager to have the ruling behind it by the 2012 election, the Administration’s representative, SG Verrilli, argued that this was not a tax and not subject to the Anti-Injunction Act. Justice Alito peppered the SG, noting -- in hindsight, prophetically -- ‘you argue today this is not a tax, but you’ll be here tomorrow arguing that it is a tax. Are you aware of any cases where a tax was not subject to the Anti-Injunction Act?’ (paraphrasing) SG Verrilli assured the assembled Justices this outcome was not supported by any precedent.
While this was not the sexy Commerce Clause argument the assembled media had pined to hear, as fate would have it this was the very fulcrum upon which CJ Roberts would uphold the turgid ObamaCare legislation. Just as Justice Alito had predicted the previous day, SG Verrilli indeed argued the next day that even if the Justices could not find it in their hearts or heads to hold the legislation constitutional under the Commerce Clause, the Court could find the mandate a tax, which is well within the Constitutional power of Congress to impose. This argument seemed at the time to be an afterthought or not too clever lawyer’s trick. Almost like the defense presented by the country lawyer representing the owner of a dog who attacked the neighbor: Ladies and Gentlemen of the jury, my client does not own a dog; if my client does own a dog, the dog did not bite Mr. Smith; and if my client’s dog did bite Mr. Smith, well Mr. Smith bit him first.
Not a single of the veteran Court watchers predicting Thursday’s outcome could have, in their wildest dreams, suggested that CJ Roberts would author the opinion upholding the legislation not as a Constitutional exercise of the Commerce Clause, but rather as a proper exercise of Congress’ Taxing Authority. And who could blame them? The Obama Administration and various and sundry Democrat leaders took pains throughout the fourteen months leading up to the passage of the law, and then in the two years following its implementation, to emphasize that this was NOT a Tax. Leave it to CJ Roberts, and the four liberal Justices who were desperate to grab any hook to hang this ruling, to advise the Administration that no, you’re wrong, this IS a tax and, oh by the way, still not subject to the Anti-Injunction Act.
While I haven’t read the entire 193 page decision, I still don’t understand how the majority could rule the mandate as a tax, thereby ensuring its legitimacy, while still look the other way on the implications of the Anti-Injunction Act. It would have been more intellectually honest had CJ Roberts and the majority ruled the mandate a tax and invoked the provisions of the Anti-Injunction Act, but that would have also guaranteed at least two more years of litigation and uncertainty. And while it is true that Congress can exercise its taxing authority in a broad way, I don’t understand if there are any limits on its authority to tax and how a government, any government, can tax inactivity. A tax on the purchase of cigarettes and liquor to curb their consumption – sure. A tax on the purchase of gasoline to pay for roads and bridges – OK. But how do we explain and justify the authority of the Federal Government to tax us for not buying something. Keep that in mind the next time you walk into a 7-11 or other convenience store and are instructed by the cashier to pay your 5% surcharge for not buying a beef jerky.
I’m sure Jack and I will be posting further on the various ramifications of the Court’s decision, so please stay tuned. But for now, we must give SG Donald Verrilli his due. Not only did he get the last laugh as he prepares the frame for the first page of the 5-4 decision upholding ObamaCare, he also sticks in his litigator’s pouch a 5-3 decision striking down the majority of the immigration law passed by the State of Arizona, probably the other most Constitutionally significant ruling of this term. And this was another oral argument in which most Court observers concluded that the sly, Columbo-like Verrilli was woefully undermanned by the stellar Paul Clement. So SG Verrilli gets to play Perry Mason to Paul Clement’s Hamilton Burger twice in less than a week.
Just another reminder that, as Rod Serling used to remind us at the end of episodes of The Twilight Zone, things are not always as they appear.