Verrilli asked to save ObamaCare — again

For the second time in three years, it’s up to Donald Verrilli Jr. to save ObamaCare.

President Obama’s solicitor general will be defending the healthcare law on March 4, when the Supreme Court will hear oral arguments in the case of King v. Burwell. Healthcare subsidies for millions of people — and perhaps the survival of the law itself — will be on the line.

{mosads}Verrilli triumphed at the high court in 2012, when he led the administration’s defense against another lawsuit that could have brought ObamaCare to its knees.

But, while the administration was victorious in that case, Verrilli’s performance was widely panned. Critics said his remarks were halting and rambling, and he infamously stopped seconds after beginning his argument to cough and take a drink of water.

The shaky performance led legal analyst Jeffrey Toobin to declare the oral arguments a “train wreck” for the government. The liberal magazine Mother Jones was even more scathing: “Donald Verrilli makes the worst Supreme Court argument of all time.”

With a furor growing, the White House was forced to put out a statement the next morning backing Verrilli and saying he “ably and skillfully” represented the government.

Months later, Verrilli won a measure of vindication, when the high court upheld most of the Affordable Care Act in a 5-4 decision.

Now Verrilli is on the hot seat again, and the stakes couldn’t be higher.

“I’m sure it weighs heavily on Don Verrilli that access to healthcare for literally millions of people is at stake,” said Walter Dellinger, who was acting solicitor general during the Clinton administration. “That’s a heavy burden to bear and one that I’m sure he’s conscious of.”

Supporters of the healthcare law are expressing confidence in his abilities, noting that, despite the criticism, the government ended up winning last time.

“I think that he’s going to be thoroughly prepared,” said Tim Jost, a law professor at Washington and Lee University who supports upholding the healthcare law. “The Solicitor General’s Office realizes that this is a terribly important case.”

Challengers of the law are also not counting on a weak argument from Verrilli.

“I think the approach that he took, other than the awkward water moment or coughing moment, appears to be important in the government winning a key aspect of the case,” said Jonathan Adler, an architect of the plaintiff’s argument in King v. Burwell and a law professor at Case Western Reserve University.

While Verrilli’s performance in the first case looks better in hindsight, he has acknowledged that the criticism weighed on him. 

“There will be times when things just break badly for you,” Verrilli said in a commencement address at Columbia University two months after arguments in the case, known as NFIB v. Sebelius. “You won’t always live up to the expectations you have for yourself and that others have for you. It happens to all of us. And when it happens, it can be tough. Believe me.”

“Let me just say on that point that people who say there’s no such thing as bad publicity have no idea what they’re talking about,” he added. “There is definitely bad publicity. Being on the wrong end of a Jon Stewart monologue is bad publicity.”

The law’s defenders argue Verrilli will have a smoother time this year because the legal case is easier to make.

The 2012 case challenged whether ObamaCare was constitutional and hinged on a number of complicated legal questions.

King v. Burwell, in contrast, deals with interpreting the text of the law itself.

Challengers say a phrase in the law referring to marketplaces “established by the state” clearly means that subsidies to help people buy insurance cannot be disbursed on the 37 federally run exchanges that are housed at HealthCare.gov.

The government dismissed that argument in its brief to the court, arguing the plaintiffs are misreading the provision and ignoring parts of the law that show the subsides were intended for everyone.

“This is a lot easier case for the government than the 2012 one,” Neal Katyal, a former solicitor general in the Obama administration, wrote in an email. “The challengers’ lawyers have essentially tried to play a ‘gotcha’ game by isolating one phrase in one provision.”

“To read the statute the way the challengers are saying is to ignore everything else about the law,” he added.

Verrilli will be facing off in the courtroom against Michael Carvin, an experienced lawyer who argued for George W. Bush before the Florida Supreme Court in 2000 and was one of the lawyers who argued the 2012 ObamaCare case.

Last time around, Carvin’s quick responses and sharp tone contrasted with Verrilli’s more measured approach.

“[Carvin] has a very aggressive style that some people like, and some people don’t, but he’s a very accomplished attorney that has been very successful,” said Adler, the law professor supporting the challengers.

Ahead of the arguments, Verrilli will be holed up at the Justice Department running practice arguments and gaming out tough questions, experts said.

Dellinger emphasized that the focus will be on winning a majority of the justices.

“You’re not trying to win the applause meter,” he said.