U.S. Solicitor General Donald Verrilli—who defended the Affordable Care Act in several major Supreme Court cases—will step down at the end of this month, the Department of Justice said Thursday.
Verrilli's planned departure is effective June 24, and his principal deputy Ian Gershengorn will replace him as acting solicitor general.
As the official who represented the White House in the U.S. Supreme Court for the past five years, Verrilli helped keep the president's signature healthcare law alive.
President Barack Obama said in a statement Thursday, “Thanks to his efforts, 20 million more Americans now know the security of quality, affordable health care.”
Verrilli argued for the government in King v. Burwell last year—a case over the legality of the ACA's insurance premium subsidies for Americans in all states. Ultimately, the court ruled 6-3 to uphold the subsidies. Many thought a government defeat in that case could have led to the ACA's demise.
He also represented the government in National Federation of Independent Business (NFIB) v. Sebelius—a 2012 case in which the court upheld the ACA's requirement that all Americans be insured or pay a penalty. The court also, however, decided in that case that states could not be forced to expand Medicaid or lose their Medicaid funding.
“He's served with real integrity, and I think without his participation, cases like NFIB and especially King, could have come out the other way,” said Nicholas Bagley, a law professor at the University of Michigan who focuses on health care law.
Bagley called Verrilli's arguments in King v. Burwell “truly masterful.” He praised Verrilli's ability to forcefully press the government's argument that the ACA only made sense if it was read to extend tax credits to Americans in all states, not just to those in states with their own insurance exchanges, as the challengers in the case argued.
In the NFIB case, Verrilli saved the ACA through some strategic decision making, said Josh Blackman, an associate law professor at South Texas College of Law, who wrote a chapter on Verrilli in his upcoming book, Unraveled: Obamacare, Religious Liberty and Executive Power.
Verrilli pushed the argument that the justices could preserve the law by construing as a tax its penalty on Americans failing to get insurance.
Many then panned Verrilli's performance as stumbling. Blackman said Verrilli got off to a rocky start in the case but ultimately recovered.
“He's not the flashiest, most polished advocate,” said Blackman, who's been critical of the way the ACA was implemented. “That's not his strength. His strength comes in the strategy of writing his briefs.”
Over his five years—a relatively long stint for a U.S. solicitor general—Verrilli argued for the government in four ACA cases. In the 2014 case involving Hobby Lobby over the law's requirement that insurance plans cover contraception, the Supreme Court sided with Hobby Lobby. The justices ruled that the ACA cannot force closely held companies to include contraception coverage in their insurance plans if the corporations' owners have religious objections to birth control.
More recently, Verrilli also argued for the government in Zubik v. Burwell, a sort-of follow up to the Hobby Lobby case, in which religious not-for-profits wanting to opt out of the law's contraception coverage requirement argued that they shouldn't have to provide any type of notification to the government or their insurers to do so. The Supreme Court decided last month to punt the cases over that issue back to lower courts, directing them to help the government and not-for-profits find a compromise. Some, including Obama, have speculated that the court's decision in that case might have been different if it had nine justices instead of eight.
The ninth seat has been open since conservative Justice Antonin Scalia died in February. Senate Republican leaders have so far been unwilling to consider Obama's nominee for the position, Merrick Garland, who is chief justice of the U.S. Court of Appeals for the District of Columbia. Senate Republican leaders want the next president to pick the nominee.
The Justice Department did not disclose what Verrilli will do next. NPR reported that he is taking a vacation and then deciding his next steps. The Supreme Court's term ends June 30 and picks up again in October.
