Former U.S. Solicitor General Donald Verrilli Jr. in his office at the U.S. Department of Justice in June. (Diego M. Radzinschi/ The National Law Journal)
The challengers of President Donald Trump’s executive order restricting immigration have made “a reasonably strong” case that Trump’s tweets and comments are legally fair game, former Obama administration U.S. Solicitor General Donald Verrilli Jr. said.
Verrilli, now a partner at Munger, Tolles & Olson, is no stranger to defending a litigating position in the face of apparently contradictory statements from a U.S. president. Still, his experiences, he said, were materially different from what Trump’s Acting Solicitor General Jeffrey Wall may face in the U.S. Supreme Court.
“I recall two instances that arose in my tenure,” Verrilli said in an interview this week.
Both were high-stakes cases for the Obama administration—the first challenge to the Affordable Care Act, and later a dispute over the administration’s temporary delay of the deportations of undocumented parents of U.S. citizen children.
During 2012 arguments in Dept. of Health and Human Services v. Florida, Justice Antonin Scalia didn’t hesitate to question the health care reform law’s mandate that individuals must purchase health insurance. He put a spotlight on President Barack Obama’s remarks.
“The president said it wasn’t a tax. Didn’t he?” Scalia asked Verrilli, referring to Obama’s statements that the mandate was a penalty, not a tax.
“Well, Justice Scalia, what the—two things about that. First is, it seems to me, what matters is what power Congress was exercising. And they were—and I think it’s clear that the—they were exercising the tax power as well as the commerce power,” Verrilli responded.
Scalia pressed on: “Is it a tax or not a tax? The president didn’t think it was.”
Verrilli responded: “The president said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.”
Justice Ruth Bader Ginsburg jumped in to support Verrilli. “A tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk pool before they need medical care,” she said.
Four years later in United States v. Texas, Chief Justice John Roberts Jr. quoted a 2013 statement from Obama about whether he would broaden a deportation deferral program to include more undocumented immigrants.
Roberts said during oral arguments: “When the president announced DACA [Deferred Action for Childhood Arrivals], the predecessor provision, he said that if you broadened it—this is a quote—‘Then, essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.’ What was he talking about?”
Verrilli said the president and the secretary of Homeland Security subsequently sought an opinion from the Justice Department’s Office of Legal Counsel about the scope of their discretionary authority.
“And they exercised it consistently with that and up to the limits of that and no further,” Verrilli told Roberts. “And so, you know, I do think whatever the president may have meant, we went through that process, we came to that conclusion and we acted on that conclusion, respecting the limits that OLC decided.”
Verrilli’s opposing lawyers in those two cases had featured the president’s statements prominently in their briefs. “We expected the questions to come, and indeed they did. We had prepared answers,” Verrilli said.
The motivation of the president was not of any legal relevance in the health care and immigration cases, unlike in the dispute over Trump’s travel ban, Verrilli told The National Law Journal.
The earlier cases involved “straightforward questions” about whether Congress had power to enact the Affordable Care Act as an exercise of the tax power, and second, whether Homeland Security had the power to issue the delay and employment authorization in the Deferred Action for Parents of Americans and Lawful Permanent Residents.
“We had an argument we could have made that the presidential statements in our cases were irrelevant as a legal matter,” Verrilli said. “We didn’t think that was the most prudent argument. We addressed them head-on rather than dodge them.”
In the travel ban cases from the Fourth and Ninth circuits, now pending in the high court, the challengers claim the executive order was primarily motivated by religious bias, not national security concerns. They rely, in part, on Trump’s campaign and post-election tweets and statements in which he referred to his desire to implement a Muslim ban.
If the justices thought the presidential statements in his two arguments were appropriate grounds for discussion and analysis, Verrilli said, “it seems to follow that President Trump’s statements would be appropriate for analysis in those cases.”
Verrilli added he was “sure” Wall, the acting solicitor general, will have an “appropriate response” if the justices ask about them.
In briefs filed recently at the high court, Wall does address the president’s comments, calling them “irrelevant,” and noting that the justices have never approved reliance on such statements.
“Divining the import of such statements for the president’s action would entail the ‘judicial psychoanalysis of’ an official’s ‘heart of hearts’ that this court has rejected,” Wall wrote in one brief. “Indeed, as far as the government is aware, until now no court has ever held that a provision of federal law neutral on its face and in operation violates the establishment clause based on speculation about its drafters’ illicit purpose.”