Commentary Magazine


Topic: Donald Verrilli

The Collateral Damage of Obama’s Post-Modernist Presidency

In response to a recent post — in which I wrote that “Barack Obama is a thoroughly post-modern president. Words and facts have no objective standing; they are relative, socially constructed, a way to advance personal reality.” — I was criticized by a Time magazine reporter for continuing my “relentless attempts to depict Barack Obama as a despicable human being” and for employing tactics that are “not only intellectually dishonest, but cynical in the extreme.”

In fact, the point of my piece — which is that during oral arguments before the Supreme Court President Obama’s legal team referred to the Affordable Care Act (ACA) as a tax even as his administration now says it isn’t a tax and never was a tax — remains unrefuted. Indeed, this short clip validates exactly what I was arguing. It shows Obama campaign spokesman Ben LaBolt insisting that “at no point” did any of the government’s lawyers, including Solicitor General Verrilli, refer to the ACA as a tax — followed by Solicitor General Donald Verrilli referring to the ACA as a tax.

How inconvenient.

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In response to a recent post — in which I wrote that “Barack Obama is a thoroughly post-modern president. Words and facts have no objective standing; they are relative, socially constructed, a way to advance personal reality.” — I was criticized by a Time magazine reporter for continuing my “relentless attempts to depict Barack Obama as a despicable human being” and for employing tactics that are “not only intellectually dishonest, but cynical in the extreme.”

In fact, the point of my piece — which is that during oral arguments before the Supreme Court President Obama’s legal team referred to the Affordable Care Act (ACA) as a tax even as his administration now says it isn’t a tax and never was a tax — remains unrefuted. Indeed, this short clip validates exactly what I was arguing. It shows Obama campaign spokesman Ben LaBolt insisting that “at no point” did any of the government’s lawyers, including Solicitor General Verrilli, refer to the ACA as a tax — followed by Solicitor General Donald Verrilli referring to the ACA as a tax.

How inconvenient.

Increasingly, the only thing Obama’s allies in the press have left is ad hominem huffing and puffing. They throw out charges that are as severed from reality as the claims made by Obama. It serves as a cautionary tale. Those who choose to defend the corruption of words by this president and his team will, sooner or later, be drawn into the enterprise themselves.

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Arizona Immigration Law: Verrilli Strikes Out Again With SCOTUS

Solicitor General Donald B. Verrilli Jr. may have been outclassed when he went up against Paul D. Clement arguing the case to uphold the constitutionality of ObamaCare before the Supreme Court of the United States. But today, when the pair once again matched up in the same forum when the high court met to hear arguments about the state of Arizona’s controversial immigration law, it appears that the result was no different. As the New York Times reports, even the liberal justices inclined to be on the same side of the administration, which wants the law struck down, gave the impression that they thought the solicitor general was something of a flop.

While Verrilli’s second humiliation — even Justice Sonia Sotomayor was so unimpressed with his presentation that she felt the need to tell him,  “You can see it’s not selling very well” — was noteworthy, even more important was the fact that it appeared that the key provision of the Arizona law would not only be upheld but that most of the justices — even the liberals — seemed to agree that there was nothing unreasonable about it. Given the opprobrium that the mainstream media has heaped on Arizona and the way that most of the chattering classes had spoken of the law and its supporters as racists, the reaction of the court must be a shock to the administration and to its liberal supporters.

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Solicitor General Donald B. Verrilli Jr. may have been outclassed when he went up against Paul D. Clement arguing the case to uphold the constitutionality of ObamaCare before the Supreme Court of the United States. But today, when the pair once again matched up in the same forum when the high court met to hear arguments about the state of Arizona’s controversial immigration law, it appears that the result was no different. As the New York Times reports, even the liberal justices inclined to be on the same side of the administration, which wants the law struck down, gave the impression that they thought the solicitor general was something of a flop.

While Verrilli’s second humiliation — even Justice Sonia Sotomayor was so unimpressed with his presentation that she felt the need to tell him,  “You can see it’s not selling very well” — was noteworthy, even more important was the fact that it appeared that the key provision of the Arizona law would not only be upheld but that most of the justices — even the liberals — seemed to agree that there was nothing unreasonable about it. Given the opprobrium that the mainstream media has heaped on Arizona and the way that most of the chattering classes had spoken of the law and its supporters as racists, the reaction of the court must be a shock to the administration and to its liberal supporters.

At the heart of the debate is the question of whether Arizona was within its rights when it mandated that law enforcement officials must seek to determine the immigration status of anyone they stop if there is reason to believe the individual is not legally in this country. Though other parts of the law — including provisions that treat illegals working or to failing to register with federal authorities as crimes — might not be upheld, the inability of Verrilli to assert that inquiring about the immigration status of a person already detained was a form of racial profiling was a glaring weakness in the government’s case.

Though the Arizona law was condemned by the president and overruled by a federal appeals court, the justices seemed to agree that states were entitled to pass laws that require local officials to make mandatory inquiries to federal authorities. Moreover, it is clear that such provisions are actually quite common. All of which means the effort to demonize the Arizonans and their effort to, as Clement put it, deal with a crisis not of their own making, was deeply unfair.

What’s more, the arguments also seemed to bring out the strange inconsistency in the administration’s case. While claiming only the federal government had the right to pass laws that deal with immigration, they seemed to extend that unexceptionable principle to demanding that local authorities ignore the situation entirely. As Chief Justice John Roberts said, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.” Even as hardcore a liberal as Justice Stephen Breyer said he would vote in favor of the constitutionality of this point in the law so long as it was proven that the process of checking immigration status would not result in “detention for a significantly longer time” than might happen in any other circumstance.

One needn’t necessarily agree with those who promulgated the law about the impact of illegals to understand that there is nothing wrong with the state trying to determine if someone already in custody is an undocumented alien. If the court rules (as seems likely) to uphold the provision — and does so with a comfortable majority that includes liberals as well as conservatives — then President Obama and a long list of other liberals who have vilified Arizona will owe the state, its governor, legislature and citizens a big apology.

As for Solicitor General Verrilli, he may have made himself the poster child for the Obama administration’s utter incompetence. As the Times notes:

At one point Justice Sotomayor, addressing Mr. Verrilli by his title, said: “General, I’m terribly confused by your answer. O.K.? And I don’t know that you’re focusing in on what I believe my colleagues are trying to get to.”

President Obama’s positions on his health care law and the Arizona immigration law were weak to start with. But with a champion as hapless as Verrilli, the government’s already weak position was made even more vulnerable.

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Obama’s Inept Aides

Via Mediate, Bret Baier of Fox News, in the most professional way possible, destroys White House press secretary Jay Carney in an interview. Baier did the same thing to President Obama’s chief political strategist, David Axelrod (see here). Chris Wallace tied top White House aide David Plouffe into knots in a recent interview. And Solicitor General Donald Verrilli was, by all accounts, wiped out during the Supreme Court’s oral arguments over the Patient Protection and Affordable Care Act.

I realize that we’re supposed to be enormously impressed with the intelligence and skill of this generation’s version of the Best and Brightest. But here’s the thing: these fellows are just not that good. Like the man they work for, they often come across as arrogant and inept, prickly and unable to directly answer questions. It’s a bad combination — and for top Obama aides, apparently, a widespread one.

 

Via Mediate, Bret Baier of Fox News, in the most professional way possible, destroys White House press secretary Jay Carney in an interview. Baier did the same thing to President Obama’s chief political strategist, David Axelrod (see here). Chris Wallace tied top White House aide David Plouffe into knots in a recent interview. And Solicitor General Donald Verrilli was, by all accounts, wiped out during the Supreme Court’s oral arguments over the Patient Protection and Affordable Care Act.

I realize that we’re supposed to be enormously impressed with the intelligence and skill of this generation’s version of the Best and Brightest. But here’s the thing: these fellows are just not that good. Like the man they work for, they often come across as arrogant and inept, prickly and unable to directly answer questions. It’s a bad combination — and for top Obama aides, apparently, a widespread one.

 

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Is Justice Breyer a Swing Vote?

Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.

The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:

JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?

MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].

JUSTICE KAGAN: I’ve forgotten my question. (Laughter).

MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.

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Solicitor General Donald Verrilli was criticized by Obamacare supporters for failing, during his oral argument, to articulate a “limiting principle” on congressional power under the Commerce Clause — because he must have known the justices would ask for one. But Elena Kagan couldn’t answer the question two years ago; prominent Harvard and Georgetown professors couldn’t answer it a year ago; last year, the government conceded the lack of a limiting principle. The problem is a little deeper than Verrilli’s presentation.

The point was demonstrated again in the colloquy Justice Breyer had with Michael A. Carvin. Carvin noted that if Congress exceeded its power under the Commerce Clause, the law “doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.” That would mean Congress could compel everyone to buy anything if Congress thought it beneficial, since “every compelled purchase promotes commerce.” Justice Kagan started to ask a question, but Breyer initiated a long colloquy with Carvin (Transcript, pp. 85-90), which ended as follows:

JUSTICE BREYER: … then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?

MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers –

JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question. [Emphasis added].

JUSTICE KAGAN: I’ve forgotten my question. (Laughter).

MR. CARVIN: I — I was facing the same dilemma, Justice Kagan.

Since Justice Breyer saw the point, it would be nice to think of him as a swing vote, possibly adding his vote to a landmark opinion upholding the fundamental constitutional principle of limited government.

But Breyer, as the leading proponent of a “living” Constitution, is unlikely to do that. The guiding principle for such proponents seems to be that the Constitution must contain — somehow, somewhere, maybe in a penumbra, maybe in provisions stretched beyond the framers’ intent — all the rights justices think individuals should have, and all the powers over individuals that justices decide the government needs. If necessary, “commerce” can simply be re-defined to mean, “being born.”

Breyer cut Carvin off as he started to suggest the framers would have rejected that view, and tried to hand the ball back to Kagan. But by then Kagan had forgotten her question, and Breyer had conclusively demonstrated that the problem with the government’s case was not Verrilli’s inability to articulate a limiting principle, but the fact there is no such principle to articulate. The “living” Constitution has you as soon as you are born.

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