Wall Street Journal Fumbles on Donald Verrilli's Broccoli Success

The Wall Street Journal's Washington Wire blog reports that Attorney General Eric Holder will step down. This announcement gives rise to speculation over who will replace Holder, and the Wall Street Journal reports that Solicitor General Donald Verrilli is a likely candidate.

I haven't been paying very much attention to the Washington political landscape, but I know that Solicitor General Verrilli is an extremely well-qualified candidate. But I think that the Wall Street Journal got a bit mixed up when it shifted to describing Verrilli's success in the litigation over the constitutionality of the Affordable Care Act. From the Journal:

Perhaps Mr. Verrilli’s most famous argument came in the main challenge to the health-care law before the high court in March 2012. It began awkwardly as he coughed and stuttered. But he was prepared when the justices asked him whether the law’s requirement to buy health insurance could open the door for the federal government to mandate that people buy broccoli. 

“A car or broccoli aren’t purchased for their own sake,” Chief Justice John Roberts said to Mr. Verrilli. “They’re purchased for the sake of transportation or, in broccoli, covering the need for food.” 

Mr. Verrilli replied, “The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care, and broccoli is … not the means of payment for anything else.” 

Despite his early stumbles in the arguments, Mr. Verrilli was redeemed when the Supreme Court ruled in the administration’s favor and largely upheld the law.

But the oral argument transcript indicates that this exchange took place in the context of Verrilli's attempt to defend the law on Commerce Clause grounds. While the law was indeed upheld, the Supreme Court ended up holding that the Constitution's grant of power for Congress to regulate interstate commerce did not give Congress the power to require people to purchase health insurance. Instead, the Court held that the individual mandate could be characterized as a tax, and therefore fell under Congress's power to tax.

Furthermore, as Josh Blackman suggests on page 274 his book, Unprecedented, Verrrilli's strategy seems to have been to shift the Court's focus from the commerce clause and "broccoli" arguments to the argument that the individual mandate was a tax. Blackman argues that Verrilli was "vindicated" by the Court's ultimate decision, but it was not because Verrilli was able to win the commerce clause argument, but because he was able to shift the Court's focus away from that argument.

It is therefore misleading for the Journal to indicate that Verilli's point about broccoli was effective and that he was "redeemed" by the Court's decision when the Court ended up rejecting the commerce clause argument. Admittedly, the article is more about political dynamics and possible appointments than it is about constitutional law. But those writing about politics should take care that any incidental forays into the field of law remain accurate.