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Ross Guberman critiques the government’s health care brief

Ross Guberman of Legal Writing Pro and the author of Point Made: How to Write Like the Nation’s Top Advocates has taken a close look at  the federal government’s 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 that the 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 urgency—a 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. Clement’s 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. Clement’s 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 government’s brief fell short in several respects. Compared with Mr. Clement’s 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 it’s 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. Clement’s most seductive examples. Mr. Clement—with his parade of horribles about regulating burial insurance, dental care, and the car industry—won 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 SG’s brief to help practicing lawyers with their own writing, not necessarily to critique the brief. Some of the things I flagged can thus seem hyper‑technical, if not downright geeky.

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

First, from the government’s brief:

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

Second, from Mr. Clement’s 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 government’s sentence is, and how fresh and confident Mr. Clement’s is. That’s not happenstance. Perhaps unwittingly, the government’s unwieldy sentence reflects its ambivalence about whether the mandate functions as a tax or as a penalty.

Don’t get me wrong: the government’s brief is first-rate. But it’s just not as smooth and polished as many of the other briefs that the Office of the Solicitor General has produced.  It’s informative and hard-hitting in many respects, but unlike Mr. Clement’s brief, it’s not a joy to read. It sings but never soars.

There’s another story behind the style here. Who really wrote this brief? Unlike the briefs filed during Elena Kagan’s short tenure, for example, the finished product here just doesn’t 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 Clement’s response brief that illuminates a particular strength or weakness in the mechanics of the federal government’s brief?

If you read nothing else in these briefs, read Mr. Clement’s 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 Clement’s 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 examples—burial insurance, retirement contributions—of 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, he’s a whiz at transitions and rhetorical constructions. In other words, he’s a great writer, not just a great legal writer.

Recommended Citation: Kali Borkoski, Ross Guberman critiques the government’s health care brief, SCOTUSblog (Apr. 11, 2012, 10:47 AM),