What a difference 24 hours can make. On Monday night, media conventional wisdom decreed that the high court will uphold health reform. Last night, conventional wisdom decreed that the high court will kill it.
This Etch a Sketch reset was triggered by the events on Day Two of oral argument. And it was quite the bloodbath, as evidenced by the transcript. Basically, the five Republicans on the court (actually four, because Clarence Thomas as usual didn’t utter a peep) sliced and diced Obama lawyer Donald Verrilli so thoroughly that the Obama administration should probably sift its resumes for a Solicitor General who can speak more coherently than Rick Perry.The Republican appointees didn’t exactly hammer Verrilli with brain teasers – they essentially asked whether requiring Americans to buy health coverage would set a dangerous precedent, whether it was constitutional under the interstate commerce clause, how the purchase mandate differed from requiring people to buy broccoli, basic stuff like that – but but but (to paraphrase all the stammering) Verrilli seemed incapable of articulating the easy and obvious rebuttals.Yes, it’s a shame that the Obama team can’t simply yank Verrilli and replace him with Laurence Silberman. Because that would arguably be the best way to ensure that the high court (actually, a 5-4 majority with Anthony Kennedy as the swing vote) upholds the provision at the core of health reform. Because Silberman has already made the best case for the purchase mandate – a provision, lest we forget, that was birthed by the conservative Heritage Foundation and later endorsed by Newt Gingrich and Mitt Romney.By now you may be asking: Who the heck is Laurence Silberman?He’s a conservative icon, a Reagan appointee to the federal courts, long hailed by the Republican right as one of America’s top judicial intellects. Last November, this conservative icon was the swing vote in a 2-1 ruling that upheld the health purchase mandate. He wrote the thumbs-up opinion for the U.S. Court of Appeals for the District of Columbia, which, high court aside, is considered the most prestigious of all the federal benches.At minimum yesterday, Verrilli would have been better off simply serenading Anthony Kennedy with Silberman’s November opinion.Silberman eviscerated the conservative claim that the government has no constitutional power to compel Americans to carry health coverage. He rejected the conservative claim that Americans should have the “freedom” to forgo health coverage; and that uninsured sick Americans should have the “freedom” to dump their medical bills on everyone else. (Two decades ago, when the Heritage Foundation was pitching its mandate concept, there was no such talk of “freedom.” But when Barack Obama embraced the concept, suddenly it became a “socialist” bugaboo.)Anyway, Silberman in his opinion stated the obvious: The U.S. Constitution gives Congress the right to regulate interstate commerce, health care is indisputably interstate commerce, and the freedom-loving uninsured adversely affect interstate commerce by dumping their costs on the insured. Therefore, he wrote, the government has the constitutional right, under the interstate commerce clause, to require the uninsured to buy coverage.Like any principled conservative, Silberman was being a strict constructionist. He checked the text of the founding document, and concluded that the law fit the literal words and meaning.He wrote: “The health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services….The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.”Also, like any principled conservative, Silberman showed respect for judicial precedent. The high court has repeatedly upheld laws that seek to regulate interstate commerce. As he pointed out in his opinion, “restaurants and hotels are obliged to serve all customers regardless of race” – a reference to the landmark 1964 Civil Rights Act, which was subsequently OK’d by the court. He also cited the famous 1942 case where the court ruled as constitutional a federal program that regulated the amount of wheat farmers could grow for personal use.All told, he rebuked Obama’s conservative foes. In his words, they “cannot find real support for their (legal challenge) in either the text of the Constitution or Supreme Court precedent.”Imagine if Verrilli had simply quoted Silberman. Or if Verrilli had quoted Newt Gingrich, from 1993 (“I am for people, individuals – exactly like automobile insurance – having health insurance and being required to have health insurance”). Or if Verrilli had quoted Mitt Romney, from 2006 (the health coverage mandate is “a Republican way of reforming the market”). Either way, the Solicitor General would’ve had a better day.Of course, he may not have been persuasive no matter how well he performed. Some or all of the Republican appointees will likely find (or invent) something in the text of the Constitution, and likely find a way to defy Supreme Court precedent (they’ve done it before), to whack health reform and ensure that partisanship prevails over conservative principle.Note that I twice used the word likely. Gaming out judicial rulings is arguably a waste of time; as Fox News legal eagle Greta Van Susteren tweeted yesterday, “Anyone who says he knows if mandate will be struck down or not is fooling you.” True that. After all, six months ago, who could have predicted Laurence Silberman? ——-I did WHYY’s “Radio Times” show this morning, talking health care politics, policy, and constitutionality with fellow guests. To hear it, go here.——-Follow me on Twitter, @dickpolman1