Government forced to argue facts, not law

March 28, 2012

Lawyers say that, when the facts aren’t on your side, argue the law. And vice versa.

The Supreme Court is all about the law, but the government was so beaten down that the Solicitor General was forced to close by arguing the facts, as Jennifer Rubin explains:

Understand this is the last chance for the attorneys to make their final impression, giving the justices something to grasp onto. What did the solicitor general do? He made a cheesy argument conveying total ignorance of the distinction between positive and negative rights. A sample:

VERRILLI: But if I may just say in conclusion that —I would like to take half a step back here, that this provision, the Medicaid expansion that we are talking about this afternoon, and the provisions we have talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

There is an important connection, a profound connection between that problem and liberty. And I do think it’s important that we not lose sight of that. That, in this population of Medicaid-eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example after example.

This is nonsense, of course. “Liberty” is not the “right to get free stuff.” And furthermore, this has very little to do with any issue in the case. It seems to have been a public-service announcement for the Obama administration, which is getting hammered in the press.

Clement picked up on this and dryly rebutted the solicitor general:

CLEMENT: Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power, which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.

Ouch. That exchange is indicative of the imbalance in legal mojo between the government and the challengers that we saw throughout the case. Maybe the left needs to stop making pleas for policy outcomes and go back to good old-fashioned legal analysis — centered on words, intent and all that sort of lawyer talk.

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