U.S. solicitor general announces his departure
WASHINGTON — Donald B. Verrilli Jr., President Obama’s top courtroom lawyer who defended his healthcare and immigration plans before the Supreme Court, is stepping down as U.S. solicitor general at the end of this month.
Atty. Gen. Loretta Lynch announced his departure Thursday and described Verrilli as “a brilliant lawyer, a devoted public servant and one of the most consequential solicitors general in American history.”
Verrilli faced a Supreme Court whose conservative majority was often skeptical of Obama’s initiatives. But despite some struggles, he prevailed in major cases that upheld the Affordable Care Act, struck down the Defense of Marriage Act and blocked Arizona’s strict immigration enforcement law.
Still awaiting a decision this month is the administration’s appeal of lower court orders in Texas that have blocked Obama’s plan to defer deportation and offer work permits to about 4 million immigrants who are living illegally in the United States.
“For five years, Solicitor Gen. 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. “Thanks to his efforts, 20 million more Americans now know the security of quality, affordable healthcare.”
The solicitor general heads a small team of lawyers in the Justice Department — most of them civil servants — who represent the United States government before the high court. As a political appointee of the president, the solicitor general decides which cases to appeal and what arguments should be made.
When the Affordable Care Act was challenged as unconstitutional, most of the litigation focused on whether Congress’ power to “regulate commerce” included the authority to require all people with an adequate income to have health insurance. But Verrilli added a fallback argument to assert that the tax penalties that enforced this insurance mandate could be upheld under Congress’ power to impose taxes.
When the Supreme Court upheld the healthcare law in June 2012 by a 5-4 vote, Chief Justice John G. Roberts Jr. said the law was constitutional because it relied on Congress’ taxing power, not the power to regulate commerce.
The victory was especially welcome for the solicitor general. When the case was argued before the court, Verrilli had an awkward and uncomfortable moment at the start. He paused to reach for a glass of water, and his voice sounded weak.
The opening incident was replayed when the audio recording of the arguments was released that day, and it fed instant commentary speculating that the president’s attorney had blown the case. But, in fact, the focus on the tax provisions in his legal brief helped win the crucial fifth vote of the chief justice.
“Don has a great sense of litigation strategy,” said Washington lawyer Walter Dellinger, who served as solicitor general under President Clinton. “He personally made the decision that it was essential to advance the argument that the ACA could be justified under the taxing power, a decision that may have saved health insurance for 20 million people.”
In a second healthcare case that challenged insurance subsidies in some states, Verrilli’s brief dissected the law passed by Congress and showed that in many of its provisions, Congress assumed that qualified people could obtain insurance subsidies in all states, regardless of whether the states had established their own health insurance exchange or used the federal version. That argument won a 6-3 majority last year.
In 2013, Verrilli urged the justices to strike down the part of the Defense of Marriage Act that denied federal benefits to same-sex couples who were legally married in their states. That decision led directly to last year’s ruling that upheld same-sex marriages nationwide.
The solicitor general had his defeats as well. The most significant loss came in 2013 when the court’s conservative bloc, in a 5-4 decision, struck down a key part of the Voting Rights Act.
Verrilli signed on at the Obama White House early in 2009 and worked in the counsel’s office there. But after then-Solicitor Gen. Elena Kagan was appointed to the Supreme Court in 2010, the president chose Verrilli to replace her.
His departure was expected. Verrilli had said he intended to leave at the end of Obama’s term, and the court is finished hearing new cases until the fall.
A new president elected in November will name a successor early next year.
In the meantime, Deputy Solicitor Gen. Ian Gershengorn will serve as as acting solicitor general.
Verrilli was a law partner at Jenner & Block in Washington before joining the administration, but friends say he has not decided what to do next.
“We’re certainly hopeful he will come back,” said Paul Smith, a lawyer for Jenner.