U.S. Solicitor General Donald Verrilli was sent to defend the indefensible before very smart people, like Justice Scalia and the eight other Supreme Court justices. Now Verrilli is going to be blamed for something that was a lost cause to begin with.

Listening to the the Supreme Court coverage of Obamacare for the last two days has been a pure joy for anyone who loves the constitution. The reason is simple: the Obamacare mandate is blatantly unconstitutional, and there’s nowhere to hem and haw and hide once you get to the Supreme Court. It’s one thing to yell and scream on cable news; it’s one things to play semantics in The New York Times or the Washington Post; and it’s another to stand before nine Supreme Court justices and have to be bring your A-game in front of the entire country. Word on the street is that U.S. Solicitor General Donald Verrilli wasn’t even fit for a high school debate club’s B-team. I disagree, because you can’t defend the indefensible. It didn’t matter what game he brought, because the Obama administration gave him an impossible task.

Here’s the analysis, from CNN’s Jeffrey Toobin:

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong. … I don’t know why he had a bad day … He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

Really? He was fine on the first day? I suppose, if you consider getting laughed at by everyone in the room to be “fine.”

Here’s the deal: Verrilli has been asked to simultaneously define something as a “tax” and a “penalty.” The Obama administration asked him to twist into an intellectual pretzel to get this thing into the end zone, and that’s tough to do.

The Obama administration has to thread a difficult needle. U.S. Solicitor General Donald Verrilli argued [Monday] that the penalty for non-compliance with the mandate did not function as a tax for the purposes of the Anti-Injunction Act [because the Fourth Circuit of Appeals ruled othewise]. [And Tuesday], he’ll have to argue that it does operate as a tax, and thus is a constitutional exercise of the congressional power to levy taxes.

Justice Samuel Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.

U.S. Solicitor General Donald Verrilli was sent on a suicide mission, and he should be pissed off. The left will place the blame on his shoulder’s when the Supreme Court rules that the Obamacare mandate is unconstitutional. All they need to do to find the real culprit is to look into the mirror.

Justice Scalia is not a stupid man, and he’s not afraid to tell that to anyone who walks into the courtroom. After Justice Kagan had to spoon feed talking points to Verrilli to help him get through the ordeal, I would be shocked if the Court didn’t strike down the mandate.

Again, today was a beautiful day if you love the constitution.

Related: My response to the Supreme Court’s decision on Obamacare.


  1. Agreed. Nice points, and thank you for the brief update on how things are going. It’s quite obvious to all those who look at this objectively that the law is unconstitutional. There really is no way that they can spin this penalty as a tax. If it is, then they must pass it separately as a tax, not a penalty. Otherwise, this mandate is dead…hopefully.

  2. Thanks for the comment, Patrick. To think that by merely existing the federal government could force you to buy a product, is weird. I don’t know how anyone could think of that for more than two seconds without coming to the conclusion that something is fishy…

  3. I’m overjoyed and very encouraged. Virilli’s performance reminded me of a Groucho Marx scene.

    “You-a needa da code-a book, boss” — Chico Marx

    My take:

    Incompetence is the worst form of corruption.

    Virilli was the best one they had to send? Then they’re in deeper doo doo than we thought.

    Excellent post, Mr. Ernst.

  4. This guy got taken to the cleaners today. Something tells me he’ll be going on a long vacation in the near future. Time to book a one way ticket to Hawaii…

  5. You are correct, he was sent on an impossible mission, but of course if you sign onto the Obama hate-America Great Leap Forward team, then you should expect to carry poison through the desert and have it occasionally spill all over yourself.

    And he did not face “9” Supreme Court justices. For reasons that are perhaps the same as why Liberalism exists in the first place, the Liberal justices sat there like idiots and aided and abetted a defense of the indefensible. Where is the integrity? Have they no shame?

    1. Agreed. I actually hate when I see headlines like, “Conservative justices primed to strike down Obamacare,” because upholding the constitution is not ideological. Being faithful to the document has nothing to do with being partisan.

    1. I’m sure you would have said the exact same thing if the 5-4 ruling had gone the other way, right Sam? What is it like when you look in the mirror and realize that you’re the type of man who defends the tortured logic that Obamacare is both a “tax” and a “penalty”?

      What is it like knowing deep down that you’re the kind of guy who defends Jonathan Gruber — who admits that the Obama administration had to lie to the American people to get it passed? Do you feel dirty? Do you feel shame? You should.

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