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.
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.
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.
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.