The Obama administration might want to ask for a court-appointed attorney or try to bring Johnny Cochran back from the grave, Solicitor General Donald Verrilli is as overmatched in Supreme Court oral arguments as Tim Tebow was against the Patriots in the NFL this past season.
Verrilli took hard hits from all angles on health care debate day two. Obamacare was compared to burial insurance and broccoli by the Supreme Court. Justices snapped increduously at his answers like a defensive lineman with Tebow's long throwing motion in his sights.
From explaining how a market with participants who don’t know when they will need health care is different from the food market, to how requiring insurance isn't a purchase mandate, it just wasn’t the solicitor general's day. Verrilli never stood a chance.
“Instead of requiring insurance at the point of sale,” says Verrilli, “Ensure that people have insurance in advance of the point of sale because of the unique nature of this market ... virtually everybody in society is in this market.”
“Why do you define the market that broadly?” said Justice Scalia. “Everybody has to buy food sooner or later, so you define the market as food.” Scalia added, “everybody is in the market; therefore, you can make people buy broccoli.”
Verrilli tried to argue that, unlike the health care market, the food market isn’t involuntary and you will not get what you need even if you can’t pay for it.
"I thought what was unique about this that it is not my choice whether I want to buy a product to keep me he althy,” said Justice Ginsburg, “but the cost that I am forcing on other people if I don't buy the product sooner rather than later.”
Verrilli’s head must have been spinning. Next came questions about the Commerce Clause.
“(Are there) any limits on the Commerce Clause?” said Justice Kennedy. “Can you identify for us some limits on the Commerce Clause?”
Verrilli said that there wouldn’t be “forced purchases of commodities for the purpose of stimulating demand,” but that didn’t satisfy Justice Kennedy, who replied “Why not?”
Verrilli’s answer to this question was a long stutter, followed by arguing that Congress is regulating commerce that everyone is already taking part in; a reply that Chief Justice Roberts argues he didn’t understand.
“You say health insurance is not purchased for its own sake, like a car or broccoli;” said Roberts. “A car or broccoli aren't purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I don't understand that distinction.”
“This is not a purchase mandate,” said Verrilli. “This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming or inevitably will consume.”
This is where he lost me. If this is not a purchase mandate, then I join Chief Justice Roberts in my confusion. Since we all will inevitably need health care we are mandated to have insurance for that moment, for which we often have no warning, it is needed.
If this requirement is signed into law and I could possibly need medical care at any time, I am being forced to buy health insurance. The glove does not fit.