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Scorned after oral arguments on health care, Verrilli emerges a winner

By David G. Savage, Tribune Washington Bureau –

WASHINGTON — Solicitor General Donald B. Verrilli Jr., who was widely criticized in March by critics who said he flubbed the defense of President Barack Obama’s health care law before the Supreme Court, may actually have been the person who saved the law, employing a move that went largely unnoticed at the time.

The justices often say the arguments set out in the legal briefs are crucial to deciding cases, more so than the oral arguments in the courtroom. There is no better example than the health care law case.

When the Affordable Care Act reached the Supreme Court, Verrilli insisted that the government’s briefs should present two alternative grounds for upholding the law’s insurance mandate. The first argument was that the law was valid under Congress’ power to regulate interstate commerce. His fallback argument rested on Congress’s power to impose taxes.

Some top government lawyers objected. They thought it was a mistake for the administration to defend the new law as a tax. Raising the tax issue would be a red flag for the high court’s conservatives, they feared.

The argument over the power of Congress to regulate commerce among the states and whether it extended far enough to cover a mandate to buy health insurance dominated the debate over the law in Congress, in the lower courts and even on cable TV.

Defenders of the law, including Obama’s lawyers, said Congress had the power to regulate commercial and economic matters, including the national market in health insurance. And that power including requiring everyone to have basic insurance, they argued.

The Republicans who challenged the law disagreed and said the power to regulate commerce does not permit the government to require people to “engage in commerce.” If so, they said, the federal government could require everyone to buy healthy vegetables like broccoli, join a health club or buy an American-made car.

The oral arguments focused on the argument over the meaning of the Constitution’s commerce clause, and the court’s conservative majority peppered Verrilli with skeptical questions on that topic. The tax argument got little attention.

On Thursday, what had seemed apparent in March was made clear — the argument over Congress’ power to regulate commerce was a loser. All five of the court’s Republican appointees agreed with the challengers that the mandate to purchase health care insurance could not be upheld as a regulation of commerce.

Had they stopped there, the law would have been struck down as unconstitutional in a 5-4 decision, which is what many observers expected.

But Chief Justice John G. Roberts Jr. said the court had a duty to uphold an act of Congress if there was a constitutional basis for doing so. And the basis he seized on was the fallback argument Verrilli included in the briefs — that the Constitution gives Congress a broad power to impose taxes to “provide for the general welfare.”

The government’s legal brief said the insurance mandate operates in practice as a tax law. No one would be prosecuted or punished for not having insurance. If they had taxable income, however, they would be forced to pay a small tax penalty.

The chief justice agreed with this argument, and so did the four liberal justices. Though Congress may not “order” people to buy insurance, Roberts held in the 5-4 decision, it may impose a small tax on those who refuse.

Verrilli may not have won on style points in the high court — but in the end, he won his case.

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