"Verrilli, slapped silly, recovers willy-nilly" revisited

On March 28, I wrote in defense of Solicitor General Donald Verrilli's performance in oral argument over the constitutionality of the individual mandate:

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 seems I undercounted the interruptions when picking over the transcript. This afternoon, former Office of Legal Counsel head Walter Dellinger argues in Slate:

Misrepresentation of the mandate in the Supreme Court: why it still matters

I have made the case below piecemeal, across many posts. This is an attempt to make it as succinctly and completely as possible.
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In his oral argument against the constitutionality of the ACA's individual mandate on March 27, plaintiff's counsel Michael Carvin asserted, "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105).

That is not true -- the ACA provides the catastrophic coverage option for others exempt from the mandate, e.g. on grounds of financial hardship. And that factual error signals a greater distortion, one that was not countered and apparently made a major impression on Justices Alito, Roberts and Scalia: that the mandate forces Americans to buy coverage greatly in excess of what's required to offset the cost of catastrophic care for those lacking health insurance. No one pointed out that a) the ACA provides a catastrophic coverage option for those under 30; b) that it extends that option to others exempt from the mandate on financial or other grounds; or c) that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage.

It seems to me that a) the justices were misled on this potentially crucial point, and b) Kennedy and/or another might still be convinced, if not to accept the mandate as constructed, to divide the baby by further limiting it -- as Marty Lederman suggested they might:

Verrilli's 'limiting principles' for the individual mandate in the Affordable Care Act

In a post I put up immediately following the March 27 oral arguments in the Supreme Court over the constitutionality of the individual mandate, I argued that Solicitor General Donald Verrilli's difficulty articulating a "limiting principle" to the government's right to mandate purchases stemmed in large part from constant interruption by the justices -- and that Verrilli did eventually produce the demanded limiting principle (two, in fact).

Oral argument is a cauldron of conflict -- at least, this one was. What came out of Verrilli in broken syntax and shorthand on March 27 is stated with admirable precision in his reply brief to the plaintiffs' briefs against the constitutionality of the mandate.  Here I'd like to compare the oral and written.

Here's the first principle as stated in oral argument:

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?

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).

The mandate "is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme" -- that is, obtaining medical care they cannot pay for because they are uninsured. Compare the tighter formulation in the reply brief: