American Elephants


The ObamaCare Arguments: Day Two. by The Elephant's Child

The long article about Attorney Paul Clement, now arguing the case against ObamaCare before the Supreme Court opens gracefully:

A little before noon on March 23, 2010, President Obama sat at a desk in the East Room of the White House, where—surrounded by Joe Biden, Nancy Pelosi, and Ted Kennedy’s widow, among others—he signed the Patient Protection and Affordable Care Act into law. It was, as Biden memorably told Obama, “a big fucking deal.” Seven minutes later, at the U.S. Courthouse in Pensacola, Florida, thirteen state attorneys general—all but one of them Republicans—filed a lawsuit seeking to overturn Obama­care. It was, as one legal expert told the Pensacola News Journal in the next day’s paper, “a political lawsuit [likely to] be dismissed.” In fact, most papers on March 24 barely reported on the suit’s filing; the New York Times devoted just one sentence to it.

Two years later, that lawsuit—which now includes 26 states, the National Federation of Independent Businesses, and two small-business owners as plaintiffs—sits before the Supreme Court.

Most of us are familiar with the Justices, but the attorneys who argue the case are unknown except to Washington insiders and Court watchers. The administration’s case is being argued by Solicitor General Donald Verrilli, who has been called one of the best lawyers in the country.

The case for the plaintiffs — 26 states, the National Federation of Independent Business, and two small-business owners — is argued by Attorney Paul Clement, who was Solicitor General in the Bush administration. He is widely regarded as one of the finest lawyers of the last century.

The second day of argument was rough going for the government. General Verrilli had a difficult time defending the mandate. The Justices failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that would distinguish a health plan mandate from any other purchase mandate that would easily be unconstitutional.

United States Department of Health and Human Services, et al.
v. The State of Florida, et al.

Attorney Paul Clement arguing for the State of Florida et al.

Solicitor General Donald Verrilli arguing for HHS et al.

Wednesday is the final day of arguments. The arguments will be about severability— can the mandate be overturned and the law survive — in the morning, and in the afternoon the expansion of Medicaid onto the states.  Then we wait.  The decision will come down supposedly some time in June. And that will be a very big deal indeed.




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