Towards the end of oral arguments in NFIB v. Sebelius, Solicitor General Verrilli gave what I have dubbed a “closing argument.” In short, he argued that to rule in favor of the government, and uphold the ACA, would promote “liberty.”
Here was my take on it in Unprecedented (tl;dr version, not impressed):
After Paul Clement’s allotted time elapsed, the chief justice gave him additional time, something his strict predecessor, Chief Justice Rehn- quist, would never have done. Later, when Roberts also gave Verrilli additional time, following his rough outing, the solicitor general chuckled out loud, joking, “Lucky me. Lucky me.” At last, with three minutes left from his expanded time, the solici- tor general began what has become known as his “closing statement.” (If he had finished when his allotted time was up, he would not have had enough time.) ….
However, after three days of argument, Verrilli made the unorthodox decision to provide his final thoughts. The justices would let him speak uninterrupted. The solici- tor general, who had been the subject of ridicule on the right and the left, had one final chance to make his case for the Court. Verrilli’s closing statement aimed to encapsulate the wide range of arguments on law, politics, and philosophy that the Court had waded through during the past three roller-coaster days. Interestingly enough, his closing focused on a topic that had been conspicuously absent—liberty. Verrilli had the idea for his closing statement in his head, though it wasn’t prepared. During the three days of argument, something im- portant had been missing from the discussion: namely, the practical consequences for millions of Americans of the law being struck down.
The scope of his closing focused, on all things, “liberty.”
Verrilli reminded the justices that more than one vision of liberty was at issue. “There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.”
GENERAL VERRILLI: Well, I think it, as I said, I think there is an equilibrium here and the 30 days doesn’t fully capture it. And let me just talk about that if I could.
JUSTICE BREYER: Briefly.
CHIEF JUSTICE ROBERTS: Briefly.
GENERAL VERRILLI: Yes, thank you, Mr. Chief Justice, briefly.
And what was this argument? Liberty!?
The real problem, I would submit here, is that if you go with Respondents on the pro forma issue or under the — on the two underlying issues, the D.C. Circuit ruling, you are really are writing the recess appointment power out of the Constitution, and that’s antithetical to the liberty-enhancing properties of separation of powers that Madison described in Federals 51, because ambitions which counteract ambitions shouldn’t disarm one side. Thank you.
Unfortunately Paul Clement couldn’t jump up and give a rebuttal.
My commentary on Verrilli’s NFIB closing is apt here:
One of the attorneys working on the challenge told me that Verril;i’s closing argument was a “quintessential example of a liberal trying to use terms Justice Kennedy agrees with, by using words like ‘liberty’ and ‘dignity.’ That’s how Kennedy speaks, but not what he means.” He added that Verrilli was also making “a huge strategic mistake because Clement was going to have a rebuttal.” Another lawyer for NFIB told me that “whatever arguments exist in defense of Obamacare, liberty is not high on that list.”