Analysis: Unfairly maligned solicitor general has last laugh on health care ruling

By Major Garrett

June 29, 2012

Like some cable-news viewers, President Obama was at first confused on Thursday about the Supreme Court ruling on his health care law. He saw the erroneous CNN report that the individual mandate had been overturned and thought, momentarily, that the Court had nullified his signature legislative accomplishment.

Standing in the corridor outside the Oval Office, Obama kept watching and waiting – perhaps hoping for a better outcome, perhaps seeking more information. White House officials were a bit opaque on this.

No matter. Split seconds later, White House Counsel Kathy Ruemmler, on the phone with an administration lawyer at the Supreme Court, got the word that the Court had upheld the law and that Chief Justice John Roberts wrote the majority opinion. Ruemmler, with Chief of Staff Jack Lew nearby, gave Obama two thumbs up.

Obama hugged Ruemmler, went to the Oval Office, picked up the phone and called his solicitor general, Donald Verrilli Jr., to congratulate him and thank him for a job well done.

Obama knew the abuse Verrilli took from critics who speculated (some down-right feared) that his hesitant and sometimes halting presentation during oral arguments doomed the health care law. Obama never bought into that criticism and the White House defended Verrilli at the time, dismissing critics as sports fans, not necessarily well-informed ones at that.

On Thursday, senior White House officials cheered Verrilli for presenting the Court with two legal justifications for the law – one under the Commerce Clause of the Constitution, the other under Congress’s power to tax. The word that came up routinely: validation. Yes, there’s a twist there. In January, Obama said that the penalty wasn’t a tax. The Supreme Court swept aside semantics and said it didn’t care what Congress called the penalty in the law; it operated as a tax and therefore was a tax. That was a victory for Verrilli, one that few court watchers and virtually no pundits predicted.

There was a bit of triumph for Ruemmler, too. For a year now, she has predicted throughout the West Wing that the Court would uphold the Affordable Care Act and that Roberts would write the opinion. The Court did that, finding that the law passed legal muster.

Obama’s legislative legacy is secure until it meets the acid test of Election Day. But senior advisers are noncommittal about the role health care will play in the campaign, offering only bland guarantees that they will respond to attacks, but also contending there is no reason to rewrite or even update the stump speech.

As for the Republican assault that the health care law is a tax increase on individuals who don’t buy health insurance, the White House will argue it’s a tax (called a “shared responsibility payment” in the law) individuals will decide whether or not to pay. If they don’t buy insurance, they are choosing to be taxed. If they buy insurance, there’s no tax. Details on the tax itself.

The White House will also argue that tax cuts in the law help small business defray it's costs. So far, however, government data shows fewer than 200,000 small businesses in 2010 qualified for the tax credit. That’s well below White House and Small Business Administration estimates.

Lastly, the White House said that Obama will generally soft-peddle the Supreme Court victory while Republicans vow to push for repeal in the House next month and presumptive GOP nominee Mitt Romney makes it his top priority if elected. Top advisers say the country doesn’t want the law repealed – citing polling data revealing many discrete parts of the bill have broad support – and is even less interested in another partisan bloodbath over health care. From the White House perspective, Republicans will appear as if they are rooting for a health care clash while Obama tries – as he prefers – to rise above the fray.

In essence, the White House now embraces a tax it didn’t call a tax and the prospect of a health care debate it’s not all that interested in fighting.

Kind of unexpected. Then again, not many predicted such a good day for Verrilli, either.

By Major Garrett

June 29, 2012

http://www.govexec.com/oversight/2012/06/analysis-unfairly-maligned-solicitor-general-has-last-laugh-health-care-ruling/56527/