Toobin on Obamacare

September 21st, 2012

I saw Jeff Toobin at the Court on June 25th, 3 days before the ACA opinion was handed down, and right before Scalia’s Tea Party rant on immigration. At the time, most of us had already figured that the opinion would not come down that day. I had already seen that Toobin’s book was slated for a September release. I asked him, are you planning on covering Obamacare in your book. He said, absolutely. I wondered how he could do that in such a short time. I finished reading Toobin’s analysis of The Affordable Care Act in his new book, “The Oath.” Earlier reviews were correct–there isn’t that much new stuff there.

The key portion–that Roberts went “wobbly” is right from Jan Crawford’s reports, though no citations.

In April and May, it started to become apparent to the other justices that Roberts was going “wobbly” in his determination to overturn the law. What happened next was unprecedented in recent Supreme Court history.

Take a shot Randy.

Perhaps the most important discussion focuses on the litigation strategy within the SG’s office, and particularly the gap between Katyal and Verrilli.

First, Toobin notes that there was a “generational” gap in the office.

Even in the initial stages, the issue split the Obama lawyers into two camps. The internal differences were largely generational.

The older guard wanted to act like Lopez and Morrison never happened.

 Traditional liberals wanted to concede little on limits of the commerce clause; Katyal felt they needed to acknowledge the changed world that included Lopez and Morrison.

Katyal, and the newer generation sought to fit the ACA within the refined commerce clause jurisprudence.

Neal Katyal didn’t see it exactly the same way . . . . he wanted to do so in a way that reflected the courts as they were—full of conservatives—not as he wished they would be. And that brought him into conflict with his colleagues at the Justice Department . . . . Specifically, Katyal came to believe that the administration would win its case only if it could answer two simple questions: Are there any limits on what Congress can do under the commerce clause? And if the health care law is constitutional, does that also mean that Congress could mandate that every American eat broccoli as well?

Later Toobin describes Verrilli’s response to a question about the commerce clause during oral arguments:

It was here that the differences between Katyal’s and Verrilli’s arguments were most stark. Katyal had grown up in a world dominated by conservatives, and he tailored his appeal to them. He acknowledged that there were real limits on the power of Congress under the commerce clause. He told the appeals courts that Congress could not regulate quintessential state functions that were local and noneconomic in nature. A criminal law forbidding guns near schools, like the law in Lopez, was outside Congress’s power under the commerce clause. Under the commerce clause, Katyal said, Congress could address national economic problems, like health insurance, but not local problems, like guns near schools. But Verrilli had little to offer the justices as a meaningful limit on the commerce clause. As Kennedy told him, “If Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis?” Verrilli said no, but the real answer seemed to be yes. He was presenting a New Deal–era version of the commerce clause like the one Robert Jackson had described to a friend in 1942: “In any case where Congress thinks there is an effect on interstate commerce, the Court will accept that judgment.” But not, clearly, the Roberts Court in 2012.

I would need to check the briefs and transcripts on this, but I gather that Toobin may be overplaying his hand here. From what I have gathered so far, the government’s position remained largely consistent throughout. Though the message was refined for sure, I don’t think the government made any different concessions regarding Lopez and Morrison at the district court, circuit court, and supreme court levels. What did change was the “healthcare is unique” argument, which Katyal was willing to tie to a collective action theory of federalism, but Verilli was not. Though this is not strictly a constitutional argument that has anything to do with Lopez or Morrison.

Also, Toobin addresses a point I have explored through interviews with people working in the Florida AG office–whether the government sought to stall to delay the case till after the 2012 election. Everyone I talked to said they didn’t. Toobin confirms this from the government’s perspective:

 But Katyal canvassed his peers at the Department of Health and Human Services and other federal agencies and found that they were spending tens of millions of dollars a month preparing to implement the ACA. It was simply irresponsible to let the legal uncertainty around the law linger.

Continuing on the Katyal meme, Toobin writes that Obama picked Verrilli, because he was a “safer choice.”

His description of the Justices on decision day was vivid:

Sotomayor was bent with fatigue; Alito needed a haircut; Kagan seemed thin and drawn. (This was partly intentional; she had lost thirty pounds in a year.) Scalia appeared as he had seven years earlier, when he stood by William Rehnquist’s casket: bereft, heartbroken, and angry, too.

Toobin does make a few broader jurisprudential points, focusing on the fact that for years Conservatives focused on judicial restraint through originalism, but in this case, all that went out the window.

There was a Republican judicial philosophy: originalism. Republican presidents talked publicly about this agenda . . .  There was some irony in the conservative embrace of originalism, in the insistence by Scalia and others that the Constitution is “dead” and unchanging. With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did. Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened, and it never will. Invariably, inevitably, the Constitution lives.

In contrast, liberals who were seen as paragons of activism reversed roles and sought to adopt judicial restraint as the mantra:

Liberals, once the apostles of judicial activism, embraced judicial restraint and deference to the democratically elected branches of government; conservatives, who had railed for so long against judges who, in George W. Bush’s famous phrase, “legislate from the bench,” set out to persuade judges to do just that.

I was at the Court three days earlier, and I also commented that the Chief looked haggard and exhausted.

At first I was worried that Toobin would preempt my book. After reading these brief chapters, I’m not worried. There is much more of the story to tell.