Excerpt

Signing the Law

The southpaw president sat down to sign the bill, using twenty-two different commemorative pens. Standing in front of a throng of admirers and supporters, Obama joked, “This is going to take a little while. I’ve got to use every pen, so it’s going to take a really long time. I didn’t practice.” He paused to reflect and then said, “When I sign this bill, all of the overheated rhetoric over reform will finally confront the reality of reform.”

The president could not have been more wrong. Minutes after the Affordable Care Act was signed into law, in Richmond, Virginia, and Pensacola, Florida, another two-year front in the battle over Obamacare would erupt. On March 24, 2010, at an event in Iowa City, Iowa, the day after he signed the ACA into law, the president mocked attacks on the law. “If they want to have that fight, I welcome that fight.” Obama continued: “I don’t believe the American people are going to put the insurance industry back in the driver’s seat. We’ve been there already and we’re not going back,” he said.

Florida, representing twelve other states, was the first to file. Initially, the Sunshine State had trouble uploading the complaint to the federal courts’ notoriously unreliable electronic filing system. Florida Attorney General Bill McCollum had to wait “seven agonizing minutes” before the documents were properly filed. But they were first—and beat Virginia by eleven minutes.

The Department of Justice was ready to wage that fight. That day Tom Perrelli, Ian Gershengorn, and Beth Brinkmann hosted a “nationwide conference call” with all of the chiefs in the Civil Division. The battle had begun.

Arguing the Case

Back at One First Street, it was pandemonium. The Wall Street Journal called the scene outside “sidewalk theater.” But the real show would begin promptly at 10:00 am inside the Court.

At the stroke of 10:00, Chief Justice John G. Roberts announced: “We will continue argument this morning in Case 11–398, the Department of Health and Human Services v. Florida.” Roberts asked Solicitor General Donald Verrilli to begin.

The solicitor general, dressed in the customary morning coat with tails, rose to the lectern and declared, as is tradition, “Mr. Chief Justice, and may it please the Court.

“The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy. Insurance has become the predominant means of paying for health care in this country.” Then he suddenly stopped.

On the biggest stage of his life, and in the midst of the most significant case argued before the Court in decades, the solicitor general unexpectedly and uncharacteristically paused during his opening remarks. Visibly nervous, he coughed, twice. After recovering, he repeated his last sentence—which had certainly been committed to memory—verbatim. He continued: “For most Americans, for more than 80 percent of Americans, the insurance system does provide effective access.”

He paused again. This time for about six seconds, though it felt like an eternity.

Sitting in the packed-to-capacity courtroom were the attorney general, countless members of Congress, cabinet members, other dignitaries, and the curious spectators who had spent up to ninety-two hours sleeping outside the Court to ensure a seat to witness history. Everyone was waiting for the solicitor general to continue.

Amid the six seconds of quiet, the solicitor general reached for a glass of water. He took a sip. In the hush of the room, everyone could hear the ice cubes clinking against the glass. One Supreme Court reporter told me that Verrilli’s coughing “was bad” and “very noticeable.”

It is the practice of the solicitor general to argue before a moot court twice for each case, so he can test out ideas and field questions from other attorneys acting as judges. Verrilli was scheduled to argue three cases, which required six moots. Each had lasted several hours. After all of that talking the previous week, his throat was sore. As a result, he would take an ill-advised sip of water right before he rose to speak. Unfortunately, it went down the wrong pipe. It’s happened to the best of us. The solicitor general would later tell friends that he was actually choking—he could not breathe at all. Verrilli would concede, I was told, that the hour started “horrendously.” Though he would recover, it was an inauspicious start for the government’s case.

The solicitor general resumed his argument, with all eyes on him. Verrilli would soon be barraged by hostile questioning from across the bench about this unprecedented assertion of federal power.

All eyes turned to Justice Kennedy, who began by asking Verrilli about the Commerce Clause: “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Kennedy had said unprecedented—and it was the burden of the government, and not the challengers, to convince the Court that this expansion of federal authority should be allowed. In constitutional law, the party with the burden of persuasion usually loses.

Everyone in the packed courtroom listened with rapt attention.

 

The Switch in Time

The chief justice dropped the bomb. “If there are two possible interpretations of a statute and one of those interpretations violates the Constitution, courts should adopt the interpretation that allows the statute to be upheld.” If the government’s position is “reasonable or fairly possible,” then the Court should adopt that interpretation rather than declare the statute unconstitutional.

Roberts’s conclusion quoted almost verbatim from what Verrilli had written in his brief months earlier: The Court must resort to “every reasonable construction . . . in order to save a statute from unconstitutionality.”

A DOJ attorney listened intently to “the way Chief Justice Roberts phrased the introduction to his discussion,” which “made it clear that he would rule in our favor.” At this point, the stunned lawyer realized, “Oh, we won.”

Toobin, who had predicted that the government would lose and called Verrilli’s performance a “train wreck,” whipped his head around. Lithwick immediately knew what had happened: Roberts “had his finger on the trigger, and he put the gun down.” Katyal recalled that the “entire mood in the audience had changed markedly” as within a “couple seconds everyone in the room knew the government had won the case.”

Verrilli showed no emotion at all. He didn’t even crack a smile at his victory. Robert Barnes, of the Washington Post, described the solicitor general’s experience during the argument as a “roller coaster” ride. At the end, after all the criticism he had received, Verrilli was victorious, thanks to a decisive assist from Chief Justice Roberts.

At this moment, the president was waiting anxiously in the Oval Office on the other end of Pennsylvania Avenue, still fearing that the initial CNN report was correct and one of his proudest achievements was unconstitutional.

At the White House, the president’s staff, with enough confirmed reports, decided to tell the president that the law was struck down.