To a degree, I suspect that critics are projecting their own discomfort and shock at the apparent intense hostility to the mandate expressed by Scalia, Roberts and Alito at the outset onto Verrilli, concluding that he buckled under the pressure of hostile questioning. Maybe he did look and sound ill at ease -- the play's the thing, not the script. But if he did not answer this point or that point at the particular moment when one critic or another thought appropriate, it was in large part because he was repeatedly interrupted. Ironically, some of the interventions by Ginsburg and Breyer may have diverted him an early answer to the core question: what was his "limiting principle, " a line the federal federal government could not cross while exercising its power to regulate interstate commerce.
By my count, Verrilli was interrupted 44 times in 50 pages of testimony. Plaintiff's counsel Paul Clement, who was more fluent, was interrupted just 12 times in 24 pages. Clement's co-counsel Michael Carvin was interrupted at a rate similar to Verrilli -- 25 times in 27 pages. But the intensity in the two halves of the proceeding was reversed: the liberal justices got in the groove of defending the mandate near the end of the proceeding, while Verrilli was buzz-sawed most intensely at the outset -- 16 times in the 15 pages following his opening statement.
It therefore took him a while to spit out the core points. But he did get them out. The fractured early focus was the basis of much criticism -- for example, Noah Feldman's:
What’s the difference between broccoli and health insurance?Well yes, Scalia was scornful. But the "unpredictable and involuntary" nature of the need for health care is part one of Feldman's own answer to the demand for a "limiting principle" to the government's power to regulate commerce. Verrilli was interrupted -- twice -- as he tried to build on the first point:
The fate of President Barack Obama’s health-care plan rests on this question, which Supreme Court Justice Antonin Scalia pressed on Solicitor General Don Verrilli. There is a good answer. Unfortunately, in oral arguments before the court Tuesday, Verrilli faltered in giving it.
The argument goes like this: If the government can require individuals to buy health insurance because there is a market for health care, what is to stop the government from requiring people to purchase broccoli on the ground that there is also a market in food?
Verrilli insisted that health care is different because the need for it is unpredictable and involuntary. Scalia was openly scornful, suggesting that this was a distinction without a difference.
JUSTICE SCALIA: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.Ginsburg's interruption elaborates a point that Verrilli just made: that if you need health care, "you will get it even if you can't pay for it." That is a foundation for what Feldman presents as a simple response to the demand for a limiting principle:
GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't have -
JUSTICE SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish itfrom other situations. Is it a principled basis? I mean, it's -- it's a basis that explains why the government is doing this, but is it -- is it a basis which shows that this is not going beyond what -- what the -- the system of enumerated powers allows the government to do.
GENERAL VERRILLI: Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce? The way in which this statute satisfies the test is on the basis of the factors that I have identified. If -
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money... (pp 13-14).
What, Kennedy wanted to know, is the limiting principle on the government’s ability to regulate? There is a good, sharp answer to this wholly reasonable question...The answer is that health care insurance is different because if the healthy people fail to get themselves coverage, it becomes extremely difficult -- under some conditions, impossible -- for the insurance market to operate. That is, as the healthiest people leave the pool, the market for health insurance starts to unravel, as people who would buy it at a price where the insurance companies would be willing to provide it will be unable to do so.Again, Verrilli's response to the broccoli question was step one on this road. We need a universal insurance market to distribute the cost of care. And the only way to enable such a market is to require everyone to be in it -- contra plaintiff's attorney Michael Carvin, who claimed that the government could subsidize, via taxation, an insurance market shaped by adverse selection, in which people were only required to buy insurance at the point of service, i.e. when they get sick. After Ginsburg's interruption, however, the conversation went through several twists and turns before Verrilli got another clean crack at the limiting principle. And then he did answer it:
JUSTICE ALITO: Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?That's not pretty, but it's substantially the same as Feldman's "good, sharp answer." What's not spelled out is how, absent the mandate, people might "engage in economic activity that would undercut the scheme" -- i.e., buy insurance only when they get sick, as Carvin recommends they be allowed to do. But Verrilli took care of that final connection in his closing rebuttal, responding to Carvin:
GENERAL VERRILLI: We've got -
JUSTICEALITO: Is that it?
GENERAL VERRILLI: We've got -
JUSTICE ALITO: Is there anything more?
GENERAL VERRILLI: We got two and they are -- they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like -- it's very much like Wickard in that respect. Very much like Raich in that respect ( p. 44, my emphasis).
Congress confronted a grave problem when it enacted the Affordable Care Act: The 40 million Americans who can't get health insurance and suffered often very terrible consequences. Now, we agree, I think, everyone arguing this case agrees, that Congress could remedy that problem by imposing an insurance requirement at the point of sale.And in fact, in a somewhat different context, Verrilli made precisely the point that Feldman wishes he had made:
That won't work. The reason it won't work is because people will still show up at the hospital or at their physician's office seeking care without insurance, causing the cost-shifting problem. And Mr. Clement's suggestion that they can be signed up for a high risk pool at that point is utterly unrealistic.
Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be -- it would be unfathomably high. That will never work. Congress understood that. It chose the means that will work, the means that it saw worked in the States and in the State of Massachusetts, and that -- and that it had every reason to think would work on a national basis (pp 108-09).
JUSTICE SCALIA: These people not stupid. They're going to buy insurance later. They're young and need the money now.
GENERAL VERRILLI: But that's -
JUSTICE SCALIA: When they think they have a substantial risk of incurring high medical bills, they'll buy insurance, like the rest of us.
GENERAL VERRILLI: But that's -- that's -
JUSTICE SCALIA: I don't know why you think that they're never going to buy it.
GENERAL VERRILLI: That's the problem, Justice Scalia. That's -- and that's exactly the experience that the States had that made the imposition of guaranteed issue and community rating not only be ineffectual but be highly counterproductive. Rates, for example, in New Jersey doubled or tripled, went from 180,000 people covered in this market down to 80,000 people covered in this market. In Kentucky, virtually every insurer left the market. And the reason for that is because when people have that guarantee of -- that they can get insurance, they're going to make that calculation that they won't get it until they're sick and they need it. And so, the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer -- insurance covers fewer and fewer people until the system ends (pp 36-37).
I've got something of a cottage industry in demonstrating that people in the public spotlight often have said more or less exactly what their critics suggest they should have said. I recognize the limitations to this exercise. It's not always about what you say: it's how you say it, and when, and how often. Perhaps Verrilli projected some weakness or anxiety or allowed his focus to be fractured. Perhaps he could use a bit of the candidate's trick of refocusing the question he wants to address, or returning to an earlier question. But noting that he did, ultimately, furnish a "limiting principle" should constitute a limiting principle for the criticism.
Update: it seems that the elements of voice and presence that I've excluded really may have been quite powerful. Here's Kate Pickert on the opening act:
Even before the justices began to ask Verrilli to defend the arguments he had made in briefs submitted to the court in the past several months, he seemed uneasy. In his opening remarks, Verrilli stammered and appeared either nervous or unwell, stuttering, repeating himself and seeming far less confident than he had on Monday, when he appeared before the justices to argue the court has standing to decide this case in 2012. This is how he began his argument Tuesday:
The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy. Insurance has become the predominant means of paying for health care in this country. Insurance has become the predominant means of paying for health care in this country. For most Americans, for more than 80 percent of Americans, the insurance system does provide effective access. Excuse me.