Verrilli, Clement Preview Looming Health Care Battle
By Elizabeth Murphy | March 9, 2022 5:29 pm

Solicitor General Donald Verrilli and one of his predecessors, Paul Clement, previewed the health care challenge slated to come before the Supreme Court at the end of this month at a legal conference Friday.

The two will be battling it out on opposite sides of the courtroom — Verrilli representing the U.S. government and Clement representing the 26 states that have challenged the Patient Protection and Affordable Care Act. Clement, who served as Solicitor General in the George W. Bush administration from 2005 to 2008, called the health care law “800-pound gorilla in the room” during the discussion at the Georgetown University Law Center in Washington, D.C.

Clement talked about the extraordinary nature of the health care case, which questions, among other issues, whether Congress may require people to purchase health insurance or pay a fine.

*Story continues after photo.

From left to right: Paul Clement, Solicitor General Donald Verrilli and panel moderator Steven H. Goldblatt talked about the upcoming Supreme Court term at Georgetown University Law Center Friday. (Elizabeth Murphy/Main Justice)

“One of the things that Supreme Court advocates seemingly just get used to is that there is going to be an hour of argument, no matter how important the issue, how far-reaching the consequences,” Clement, a partner with Bancroft PLLC, said. “That’s not so in the health care context.”

The case will be split into four parts, with six hours slated for oral arguments over a three-day period.

The justices will hear arguments about the Anti-injunction Act, which bars judicial review of pre-enforcement challenges to the imposition of federal taxes; the controversial minimum coverage provision (or “individual mandate,” as Clement calls it) requiring Americans to purchase health insurance or pay a penalty; and on the challenge to Medicaid changes in the law.

While the individual mandate question has fixed the attention of most court watchers, Clement said, the Medicaid issue will likely have a long-lasting impact on the relationship between states and the federal government. The health care law would greatly expand Medicaid’s reach, including regulating coverage costs to some extent.

“Whatever limits there may be on Congress’s ability to regulate under the Commerce Clause, if Congress and the federal government can impose conditions on the states as a receipt of federal funds, whatever they can’t do under the Commerce Clause they can do indirectly through an exercise of spending power,” Clement said.

Verrilli agreed with Clement that the health care case is one of the major reasons many would consider this to be a “blockbuster term” in the Supreme Court. He said just yesterday he received the entirety of the amicus curiae briefs for the case, which were wheeled into his office in two large carts — the audience laughed when he joked that it seemed like the documents must have totaled an enormous 7,500.

“I don’t think there is any doubt the issue is getting the serious attention it deserves by the court, by the United States and all the litigants,” he said.

The current Solicitor General also discussed the United States v. Jones case, which he believes is going to “reverberate very significantly” even beyond its current confines.

In the Jones case, the Supreme Court decided that the defendant’s Fourth Amendment rights were breached when law enforcement attached a GPS tracking device to his car. Doing so without a warrant, the justices held, constitutes trespassing.

Justices Sonia Sotomayor and Samuel Alito filed concurring opinions, discussing more broadly new technology and its potentially intrusive impact on personal privacy.

There are national and cyber security implications at play, Verrilli said.

“We’re going to be wrestling the implications of that decision for quite a long time, I think,” he said.


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