Ross Guberman critiques the governments health care brief

Ross Guberman of Legal Writing Pro and the author of Point Made: How to Write Like the Nations Top Advocates has taken a close look at the federal governments brief on the merits on the constitutionality of the individual mandate and made 140 comments on the legal writing techniques employed in the brief. Below, Ross answers a few questions about the briefing on both sides of the health care cases.

What do you see as the biggest challenges thatthe federal government faced in crafting this brief, and what techniques it use particularly well to overcome them?

A brief defending an ambitious statute needs a sense of urgencya sense of the problem the statute needed to solve. Through a slew of statistics buttressed by economic analysis and health-care policy points, the government does a terrific job of proving that we have a health-care crisis. Unfortunately, though, Mr. Clements side does not claim otherwise, so that part of the brief has limited persuasive value. The oral arguments made clear that the fight is about the best ways to solve these problems, not about the gravity of those problems.

The government also needed to counter Mr. Clements efforts to make the individual mandate sound un-American, if not otherworldly. Without swagger or overkill, the government effectively wove in several pro-mandate quotations from conservative-leaning think tanks like the Heritage Foundation. The government also highlighted some choice quotations from the well-respected and Republican-appointed Judge Jeffrey Sutton, who voted to uphold the mandate when it was before the Sixth Circuit. As Show, Not Tell advocacy goes, all these references are home runs.

Finally, although coverage of the case has veered toward the dramatic and the political, the Justices will eventually have to grapple with their Commerce Clause case law. On that front, I thought that the government deftly marshaled the best Scalia quotations from Raich while exploiting distinctions drawn in Lopez. In fact, when it comes to molding and shaping the Commerce Clause case law, the government bested Mr. Clement hands down.

But the governments brief fell short in several respects. Compared with Mr.Clements brief, the style is wonkish and a bit stiff: after a while, even the most assiduous reader might find it tough going. The passages on health-care financing, for example, have a cobbled-together, cut-and-pasted feel, almost as if they were written by a graduate student rushing to meet a deadline.

More important, the government never quite musters up enough passion for its strongest legal arguments: that all sweeping reforms are unprecedented by definition; that its not for the Supreme Court to second-guess Congress in these matters; and that even if it were, the Court has already approved similar efforts to regulate similar activities.

Put another away, whether you agree with Mr. Clement or not, he has a robust theme: the Affordable Care Act is both unprecedented and unbounded, as he puts it. From the first line to the last, that theme seeps into every sentence of his brief and serves as its narrative anchor. The government needed to develop a stronger counter-theme.

The biggest missed opportunity, though, is that the brief lacks the preemptive strikes that might have deflated Mr. Clements most seductive examples. Mr.Clementwith his parade of horribles about regulating burial insurance, dental care, and the car industrywon the image and sound-bite wars, and apparently inspired many of the Justices toughest hypotheticals. The government, for its part, did not come to battle equipped with enough vivid examples of its own or with a crisp enough narrative about why the cost shifting in health care makes it so fundamentally different from other parts of the economy.

In your markup of the federal government’s brief, you noted many fine points of legal writing, including properly and improperly split verb phrases, jarring and smooth transitions, and word choice issues. How important do you think these fine points are to the overall persuasiveness of the brief?

I marked up the SGs brief to help practicing lawyers with their own writing, not necessarily to critique the brief. Some of the things I flagged can thus seem hypertechnical, if not downright geeky.

But the style of a brief often reveals the story of that brief. Take these two sentences.

First, from the governments brief:

The practical operation of the minimum coverage provision is as a tax law.

Second, from Mr. Clements brief:

But that argument is another dead end because the penalty plainly operates as a penalty, not a tax.

Similar point, though made in defense of opposite positions. But note how awkward and clunky the governments sentence is, and how fresh and confident Mr. Clements is. Thats not happenstance. Perhaps unwittingly, the governments unwieldy sentence reflects its ambivalence about whether the mandate functions as a tax or as a penalty.

Dont get me wrong: the governments brief is first-rate. But its just not as smooth and polished as many of the other briefs that the Office of the Solicitor General has produced. Its informative and hard-hitting in many respects, but unlike Mr.Clements brief, its not a joy to read. It sings but never soars.

Theres another story behind the style here. Who really wrote this brief? Unlike the briefs filed during Elena Kagans short tenure, for example, the finished product here just doesnt hold together. The tentative quality of some of the writing suggests that the government might have struggled over the substantive strategy it should adopt as well.

Was there anything striking to you in the construction of Paul Clements response brief that illuminates a particular strength or weakness in the mechanics of the federal governments brief?

If you read nothing else in these briefs, read Mr. Clements page-and-a-half-long Introduction. What a masterpiece of succinct, catchy, and even memorable analysis. Forgoing an introduction, the government began its brief with the statutory background and the history of health-care reform. That dry, cerebral opening set the tone for the rest.

What makes Paul Clements writing so phenomenal?

I can think of at least five reasons.

First, he was able to return to his theme of unprecedented and unbounded across the entire document, from the introduction through the facts and on to the final sentences.

Second, he skillfully contrasts his view of the mandate and the case with that of the government, forcing the Justices to choose between two options that he alone gets to frame.

Third, he conjures up many vivid examplesburial insurance, retirement contributionsof what he claims the government will be allowed to regulate if the mandate goes unchecked.

Fourth, as I mentioned earlier, his style is both punchy and elegant.

And fifth, hes a whiz at transitions and rhetorical constructions. In other words, hes a great writer, not just a great legal writer.