By most accounts, Obama’s solicitor general, Donald Verrilli Jr., did a terrible job arguing the government’s case defending Obamacare, particularly the individual mandate. Even The New Yorker’s Jeffrey Toobin, a liberal who had predicted an easy win for Obamacare, seemed shaken by Verrilli’s performance on Day 2, calling it a “train wreck” that put the law “in grave, grave danger.” The way Verrilli stuttered and stammered his way through arguments and appeared to wilt under questioning by the justices, you had to feel embarrassed for him.
Hearing about the three days of Obamacare oral arguments reminded me of some of the great moments from our case, Citizens United v. FEC. The most dramatic exchange that stands out in my mind came when-Deputy Solicitor General Malcom Stewart was forced to admit during the first round of oral arguments that the government had the power to ban books. In the rearguing, then-Solicitor General and now-Supreme Court Justice Elena Kagan attempted to argue that even though the government could potentially ban books, it never had and so we must trust the government when they say they never will.
Will Verrilli’s stammering, unconvincing defense of the individual mandate be considered the turning point of the case the way the government admitting it could ban books was for ours? Only time will tell, but I remain optimistic that the Supreme Court will recognize the unconstitutionality of Obamacare and strike it down.
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