THE AMAZING MR. CLEMENT
The Supreme Court is likely to issue its decision on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) by the end of June. Although predicting the Court’s decisions is a prognostication fraught with danger (rarely better than predicting the weather), most Supreme Court watchers agree that PPACA will be decided on the merits and that the PPACA Individual Mandate and all provisions of the law that are intertwined with it will likely be struck down. If that occurs, the majority will likely include five members: Chief Justice Roberts, Justice Scalia, Justice Thomas, Justice Kennedy, and Justice Alito. The minority will likely include four: Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.
The oral argument in the PPACA case, available on the Supreme Court’s web site, is enormously edifying and is proof of the capacity of human intellect. Indeed, for anyone interested in the issues surrounding this historic event, for students (and prospective students) of the law, and for any who practice constitutional and administrative law, the oral argument is must listening. In addition to its historical and its constitutional and administrative law value, the argument provides a great education in legal polemics. There are many fine examples of intellectual contest between the attorney for the twenty-six states, Paul D. Clement, and the Solicitor General of the United States, Donald B. Verrilli, Jr., and among Clement, Verrilli and the Justices. Although argument was heated at times, never once did counsel or the bench lose decorum, indicative of the great intellect operating.
Verrilli has been blamed unfairly by the Washington Post and certain pundits for having failed to present effective argument in favor of PPACA. I would be surprised if a single Justice or serious follower of constitutional law shares that view. In fact, Verrilli did a commendable job arguing in favor of what is an awful bill. He presented the best arguments in favor of the law that could be mustered and he performed ably in every respect. His work in defense of the law was complimented by efforts from the bench, particularly from erudite inquiries and exchanges coming from Justices Ginsburg, Breyer, Sotomayor, and Kagan.
For me, and I suspect for that resilient minority of constitutional lawyers who still believe that the document must be interpreted consistent with the intellectual foundations and principles intended by the Founding Fathers to animate it, PPACA is a horrific exercise of unlimited government, exceeding the limits of the constitutional powers to tax and spend with a new extraconstitutional power to mandate private purchase, a power of extraordinary liberty invasive and destructive potential. For the first time in American history, the PPACA compels private parties to spend their after tax dollars on the purchase of specific goods from specific vendors. The PPACA grants a de facto monopoly to a specific subset of health insurers who provide plans the HHS Secretary deems “qualified.” It does so by compelling some 52 million Americans presently not insured to expend between $5,000 and $15,000 or more per year for health insurance from one of those companies designated by the Department of Health and Human Services as a qualified plan provider. It makes the insurers proxies for implementation of the federal government’s dictate on what kind, degree, level, and quality of care each American will receive. It places the last nail in the coffin of free market forces (so effectively prepared for burial by Medicare and other federal government regulations of medical practice).
In listening to the oral argument delivered by Paul D. Clement challenging Obamacare (and to his responses to queries from the bench), the intelligent listener cannot help but be impressed repeatedly by Clement’s sheer brilliance. Without question, Clement is a debating giant on the order of Daniel Webster or Henry Clay. His word choice, logical construction of argument, incredible memory, and powerful delivery are unparalleled in my twenty-seven years as a federal litigator. In the Supreme Court bar speculation concerning Clement’s ultimate fate is near universal in its direction. All think Clement destined for nomination to the Supreme Court. All think he is the most eligible candidate for Associate Justice if President Obama is replaced with President Romney.
Clement is a regular before the Supreme Court, having argued some sixty cases before the Justices. Just a week after he argued the challenge to PPACA, he was back again arguing on behalf of Arizona in defense of its immigration law. It is likely that Clement has argued more significant cases before the Supreme Court than any other attorney in recent history. With that long history, one would expect normal human frailties would begin to show in instances where an argument might fall flat at points or conflict with logic but there is no such instance in Clement’s high court argument.
Ironically, law student Clement was under the editorship of law student Barack Obama when the two were at the Harvard Law Review. Clement is to the law an intellectual giant against whom Obama pails mightily by comparison. Obama’s most recent, embarrassing comments suggesting that the Supreme Court lacks its most basic power of federal judicial review reveal that point painfully. Clement not only commands an extraordinary quantity of fact and law in each case he argues, he also presents proof of that command repeatedly, sometimes in more than one case pending simultaneously before the Supreme Court. Preparation for one case before the Supreme Court is ordinarily difficult enough for most constitutional lawyers but preparing for more than one case simultaneously requires a very special genius. Clement is a darling of the states and of the Republican leadership, and he is a fixture at the Court who commands the respect of all.
Georgetown University law professor, former Solicitor General of the United States under George W. Bush, former law clerk to Justice Scalia and to the brilliant Laurence H. Silberman of the D.C. Circuit, Clement’s resume brims over with great achievement directly reflective of his exceptional legal talents. It is no exaggeration to say that those achievements in the law have contributed fundamentally to a revivification of power limiting constitutional doctrines and may, with the decision in PPACA, help contribute to a restoration of some meaningful limit on the Congress’s far too expansive Commerce Clause power.
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Because Clement is only 45 years old, he will be eligible for nomination to the Supreme Court for at least two more decades. Consequently, if Obama is re-elected, Clement will continue to labor in the vineyard, waging the good fight against Obama Administration constitutional nightmares, like Obamacare, and sharpening his already pristine wit and wisdom for a later Republican administration. Clement provides hope for those of us who long for a restoration of constitutional government. If, however, Romney becomes President, it is a virtual certainty that the very next vacancy on the Court will be filled by Clement. The failure to nominate him to the high court would be a mistake obvious to everyone. No Supreme Court watcher with whom I am aware doubts that Clement will be as towering a jurist as he has been a lawyer.
� 2012 Jonathan W. Emord - All Rights Reserved