What Obama’s Lawyer Should Have Said to the Supreme Court

The law, lawyers, and the court.
March 29 2012 4:07 PM

How To Defend Obamacare

Solicitor General Donald Verrilli was grilled by the Supreme Court’s conservatives. Here is what he should have said.

Solicitor General Donald Verrilli gave arguments in favor of Obamacare.
Solicitor General Donald Verrilli

Photograph by Paul J. Richards/AFP/Getty Images.

May It Please the Court,

I have never written an open letter to Your Honors, but I now do so in response to several things that were said—and not said—in this week’s historic oral argument on the Affordable Care Act, aka “Obamacare.”

In the spirit of the season, please permit me to proceed in the same style of Socratic Dialogue powerfully on display in the oral argument itself.


Q: What are the limits of congressional power?   

A: The limits are those found in the Constitution itself, of course—its text, its history, and its structure as glossed by subsequent practice and precedent. The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom. And we have an underlying problem that is truly “among the several states.” The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states.

Q: How so?

A: At any given instant, literally millions of Americans are out of state. Most of my students come from other states. I myself am out of state three days a week. If any of us falls sick while out of state, we can seek ER care in the host state. And unless we have insurance, we will be imposing costs on other states. Obamacare addresses this obvious interstate problem in a direct way. The two leading cases in which the court has recently invalidated congressional laws as going beyond the scope of the commerce clause—U.S. v. Lopez in 1995 and U.S. v. Morrison in 2000, involving guns in schools and violence against women—did not involve similar interstate spillovers. Those cases were thus rightly decided on commerce clause grounds, as I myself have argued. And these cases prove that limits do really exist.

Q: Isn’t the obligation to offer ER care itself created by federal law?  So isn’t your argument pure bootstrap—one intrusive federal law generating another?

A: With due respect, no. The obligation to care for the urgently sick—including the strangers in our midst—is ultimately rooted in morality and centuries of tradition. Many ERs would and should pitch in even without a federal requirement, and the interstate problem is ultimately created by travel itself—travel that the interstate commerce clause in fact was designed to promote. Which leads me to a second and independent argument supporting Obamacare, namely . . .

Q: Before you get to that, wouldn’t your argument allow the feds to mandate burial insurance?  Indigents sometimes die out of state, don’t they?

A: Yes, but in what numbers, Your Honor? With due respect, it is easy to hypothesize from an armchair—but is there really, truly, an interstate problem of indigent interstate burials anywhere near the magnitude of the actual ER problem in America?  States can individually handle burials, but any state that on its own tries to generously handle the health-care issue risks becoming a massive magnet for out-of-staters. Sick people can flock to states with generous medical benefits. And this really doesn’t happen with dying people leaving their home states just so that they can die on some other state’s nickel.

Q: What about a federal mandate to buy broccoli?

A: Thank you for that softball, Your Honor. There is no real, substantial, honest-to-goodness interstate spillover/externality problem with broccoli that I see at the moment.  [Pause] Even if nothing I have said yet persuades Your Honors, my second commerce clause claim is that millions of Americans suffer from preexisting medical conditions. If they get a better job offer out of state, they should take it so that they can contribute more to their families and to the general economy. But they will not be able to do so if the out-of-state employer discriminates against preexisting conditions. This discrimination creates a huge lock-in of labor. It prohibits interstate mobility—the free interstate flow of services. The core purpose of the interstate commerce clause is to allow Congress to remove interstate barriers—legal, physical, economic—such as this.

Q: That explains the ban on preexisting condition discrimination, but how does that explain the mandate?  

A: The two are of course intertwined, as Your Honors recognized on Day 3 of oral argument, regarding the law’s “severability.” The ban on discrimination will only work if almost all are obliged to insure before they become expensively sick.

Q: But nothing you’ve said so far addresses the unprecedented issues raised by a federal mandate that a person buy a private product.

A: Several answers, Your Honor. First, this law is hardly unprecedented. The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.



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