SG Verrilli Relies on the Constitution’s Preamble

In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli  urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA.  His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the best way to deal with America’s health care problems.  But he also referred, twice, to the fact that the Medicaid provision and the ACA more generally are important to “secure the blessings of liberty” for those individuals who would otherwise face health care crises.

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It’s not uncommon for liberals to refer to the Constitution’s preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government’s powers are significantly limited by their enumeration.  But I’ve never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate.  He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices.  Given his reputation as one of the country’s top appellate lawyers, a tempting explanation is that he couldn’t believe that anyone except perhaps Thomas was really concerned about that issue.