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Regulation and Compliance > Federal Regulation

Verrilli, Obama lawyer who helped save PPACA, to resign

By Greg Stohr

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(Bloomberg) — The man who won the Obama administration’s biggest legal battles, including fights over health care and gay marriage, is stepping down.

U.S. Solicitor General Donald Verrilli will leave his post after a five-year tenure as President Barack Obama’s voice at the Supreme Court.

The soft-spoken Verrilli, 58, made the Supreme Court arguments that saved the Patient Protection and Affordable Care Act (PPACA) — Obamacare — from legal oblivion in both 2012 and 2015. His nuanced position on gay marriage helped frame the debate as the court moved toward full legalization last year.

See also: PPACA Oral Arguments Transcript and Audio: Day 2

“For five years, Solicitor General Don Verrilli has fought in our nation’s highest court for a better future, winning landmark cases that moved America forward,” Obama said in a statement. Verrilli is the longest-serving solicitor general in more than four decades.

Deputy Solicitor General Ian Gershengorn will take over in an acting capacity starting June 25.

Succeeding Kagan

As deputy White House counsel, Verrilli was little known outside Washington legal circles when Obama nominated him for solicitor general in 2011. Verrilli filled a position that became vacant when Obama named Elena Kagan to the Supreme Court.

His tenure was defined by showdowns with the Supreme Court’s conservative wing. Verrilli defended the Voting Rights Act, argued for presidential recess-appointment powers, fought to preserve pollution limits and advocated in favor of campaign finance regulations.

Each argument found Verrilli trying to fend off skeptical questions from the court’s conservatives while seeking to persuade either Chief Justice John Roberts or Justice Anthony Kennedy to align with the court’s liberal wing.

Roberts was often Verrilli’s toughest questioner, pressing the solicitor general on any perceived flaw in his reasoning. In arguments this year over the administration’s immigration plan, Roberts pointed to what he suggested were contradictory passages in the solicitor general’s brief.

“That must have been a hard sentence to write,” Roberts told Verrilli.

“I actually had no trouble writing it, Mr. Chief Justice,” Verrilli responded, drawing laughter from the audience.

Saving Obamacare

Verrilli’s biggest, and perhaps most surprising, success came in the 2012 challenge to PPACA. Verrilli began his argument in uncharacteristically halting form, struggling to speak and stopping to drink water. His difficulties formed the core of a Republican Party advertisement that used altered audio from the session.

Verrilli recovered well enough to win Roberts’ vote upholding the law and its requirement that people either acquire insurance or pay a penalty. In writing the court’s controlling opinion, Roberts adopted a legal theory that Verrilli had championed within the administration, saying the measure was a valid exercise of Congress’ constitutional power to levy taxes.

See also: Q&A: 10 things you need to know about the PPACA ruling

Verrilli was less successful on issues of race, losing a 5-4 decision in 2013 that voided a key provision of the landmark Voting Rights Act, the 1965 law that opened the polls to millions of blacks.

On gay rights, he helped the administration walk a fine line as it abandoned its defense of a federal law that defined marriage as a heterosexual union. In a 2013 court filing, Verrilli nudged the court toward full gay-marriage rights, offering up an approach that would have brought same-sex weddings to California and seven other new states. Although the justices eschewed that approach and issued a narrower decision, the court legalized gay marriage nationwide two years later.

That ruling came after Verrilli and the administration had thrown their full support behind gay marriage as a nationwide right. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples,” Verrilli told the court during arguments in 2015.

See also:

Kennedy sends mixed signals as high court debates gay marriage

Severability Replaces Broccoli in the Sights of Legal Scholars

     

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