At a Heritage Foundation event on Wednesday US Solicitor General Donald B. Verrilli promised to stand with President Barack Obama but bailed at the last second, opting to agree that the President’s attempts to undercut the Supreme Court’s reputation ahead of the Obamacare ruling were uncalled for.
Verrilli said, “I’m not going to be offering anything personal,” promising to support the Obama Administration’s published positions, but during the final moments of the panel, he seemed to change course.
As the panel closed,Michael Carvin, a Partner at Jones Day and an oral advocate in the health care Supreme Court case, attacked President Obama for pressuring the Supreme Court to uphold ObamaCare as a matter of “patriotism.” Even while Franklin Delano Roosevelt tried to pack the court, Carvin explained, he “didn’t criticize the court while there was an active government suit.”
Carvin called Obama’s comments “a sustained attempt…to try and intimidate the court.” “That’s why we give justices life tenure,” he said, to protect them from these kind of attacks.
In an odd moment of possible opposition to Obama, Verrilli agreed. “I think the right course to assume is that everybody is acting with integrity,” he said.
The comments were part of a panel discussion about the 2011-2012 United States Supreme Court session. The claims of panelists clashed, reminding the public about the legal issues of the past year, including Obamacare. But a central question went unasked and unanswered.
Not a single person asked Verilli if he agreed with the President that Obamacare’s individual mandate is not a tax.
Verrilli argued before the Supreme Court that the Affordable Care Act, also known as ObamaCare, should be upheld because its mandate falls under Congress’ taxing power. While many criticized Verrilli for this argument at the time, it appears that his testimony convinced Justice Roberts to cast the deciding vote in favor of the law.
Nevertheless, the Obama administration and campaign have insisted that the mandate is not a tax, calling it a penalty.
After promising not to deliver any “personal” opinions, Verrilli reminded his audience, “the court held, in the main, that the law was a legitimate action.”
Carvin said that he never expected Roberts’ decision, and added, “Roberts clearly rewrote the statute.” He cited the dissenting opinion, which pointed out that “the government didn’t want the money,” but aimed to push people to buy health insurance.
“The Court gave Congress all the power it had removed from the commerce clause, under the taxing power,” Carvin explained. As the Washington Free Beacon reported, Representative David Camp (R-MI), called the decision a “brave new world” of tax policy.
Carvin noted a silver lining in Roberts’ decision, however. Because the law has been ruled to be a tax, “you wouldn’t need a supermajority to repeal it.”
The panel discussed other cases, including religious liberty case Hosanna-Tabor v. EEOC, in which the Court upheld Hosanna-Tabor’s ability to fire a woman based on religious reasons and the Supreme Court’s recent decision to uphold parts of S.B. 1070, commonly known as the Arizona law.