Obama backs healthcare defender – until he doesn’t

March 29, 2012

By Reynolds Holding 

The author is a Reuters Breakingviews columnist. The opinions expressed are his own.

Donald Verrilli may have had a Billy Martin moment. Despite the U.S. solicitor general’s stumbling effort defending President Barack Obama’s healthcare law before the Supreme Court this week, the White House gave him a vote of confidence. That’s what Martin, the volatile New York Yankees manager, used to get just before he was fired. Verrilli’s miss may not change the case’s outcome, but it costs him credibility – if not his job.

The greatest legal vulnerability in Obama’s signature reform is its mandate that all Americans buy health insurance. If that’s constitutional, say critics, then Congress can make people buy virtually anything. To satisfy the top U.S. court’s conservative justices, Verrilli had to explain how the law still respects limits on Congress’ power.

For starters, he could have said Congress can’t regulate strictly local affairs that don’t involve commerce. But it can stop people from gaming a valid nationwide system by, for instance, buying insurance only when they’re sick. Instead, Verrilli rambled on about everyone eventually needing healthcare and the mandate making insurance affordable. The conservatives weren’t impressed, even after their liberal colleagues came to the lawyer’s aid.

It may not matter, because the justices often make up their minds before oral argument. But they do respect the solicitor general’s positions more than most, and Verrilli’s failure to offer persuasive answers may have undermined his credibility with the court. He may even doubt it himself. “Lucky me,” he said, after Chief Justice John Roberts told him on Wednesday that he had 15 minutes more to argue.

The White House probably hasn’t helped matters. Expressions of confidence can be anything but. George Steinbrenner, the legendary Yankees owner, expressed “complete confidence” in Martin before firing him – for the third of five times – in 1983. And 1972 Democratic presidential candidate George McGovern said he backed his running mate, Thomas Eagleton, “1,000 percent” before dumping him.

Then again, Verrilli is a heavyweight lawyer known for smarts, toughness and experience before the high court. He may simply have had a bad day, if rather an important one. At least he has Obama’s backing – until he doesn’t.

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