Five Ways to Write Like Paul Clement
By Ross Guberman
“Phenomenal,” said our new solicitor general, Donald Verrilli, Jr. “I commend it to you as an example of how to write an effective brief,” he told the group of lawyers.
Was Mr. Verrilli touting the government’s own brief defending the Affordable Care Act’s individual mandate?
Not at all. That “phenomenal” model was the brief penned by his dueling partner, Paul Clement.
So was Mr. Verrilli engaging in some twisted psychological warfare? Or is the 45-year-old Paul Clement poised to become the Right’s next John Roberts?
If mandated to choose, I would pick option two.
But what makes Mr. Clement’s brief so terrific? Let me share five reasons his brief is as “phenomenal” as the government thinks—or fears.
I. Full Circle
We lawyers talk a big game about having “a theme of the case,” but how many briefs make good on that goal? To succeed, a theme must be at once bite-sized and specific. And it must cascade across the brief from the opening paragraph through the fact section and land on the conclusion.
Mr. Clement pulls no punches here, announcing in the very first sentence that “[t]he individual mandate rests on a claim of federal power that is both unprecedented and unbounded.”
“Unprecedented” appears 20 more times in the brief, and “unbounded” another 8 times. The related idea of “limit” or “limiting,” also introduced in the brief’s opening paragraph, resurfaces no fewer than 40 more times.
Thus this theme is everywhere. Take the facts in the Statement of the Case. Here’s the very first sentence:
The Patient Protection and Affordable Care Act imposes new and substantial obligations on every corner of society, from individuals to insurers to employers to States.
And the theme returns full circle in the argument’s parting thought:
The statute the federal government defends under the tax power is not the statute that Congress enacted. In that statute, the penalty provision is merely the tail and the mandate is the proverbial dog, not vice-versa. And that statute imposes a command that is unprecedented and invokes a power that is both unbounded and not included among the limited and enumerated powers granted to Congress. It is therefore unconstitutional, no matter what power the federal government purports to invoke.
II. Don’t Be Fooled
Although Mr. Clement rails against one type of mandated choice, he has no qualms about repeatedly forcing the Court to choose between two views of the case, his opponent’s and his own. Because he is the one framing the contrast each time, he can sound the alarm that “this case is not about X; it’s about Y.” In doing so, he’s exploiting a technique that I call Don’t Be Fooled in Point Made and that rhetoricians call “antithesis.”
One contrast juxtaposes two “either-or” views on the mandate:
The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed.
Another compares two ways of “compelling individuals into commerce”:
The power to compel individuals into commerce is exercised not to effectuate regulation of existing commerce, but rather to create commerce so that Congress may regulate it.
Yet another pits “the Act is unprecedented”—Mr. Clement’s theme—against “health care is unique”—the government’s:
The focus on the purported “uniqueness” of the health care market and the centrality of the individual mandate might explain why this is the first time Congress has asserted this unprecedented power, but it does not explain why it will be the last.
And still another passage contrasts two types of mandates and two reasons that those distinctions matter:
That distinction between markets matters not because Congress’ authority to regulate the market for health care services differs from its authority to regulate the market for health care insurance, or because the Constitution compels some sort of categorical distinction between the two. It matters because there is a critical difference between a mandate that individuals obtain insurance and a mandate that individuals who obtain health care services use insurance when they do so.
III. Lead by Example
Never underestimate the power of creative examples, a trademark technique of all great legal writers. On the Right, Chief Justice Roberts famously compared choosing the best technology for controlling emissions to choosing the best car: “Mario Andretti would choose a Ferrari; a family of four a minivan.” On the Left, Justice Kagan’s early dissents have featured such memorable examples as this one from Arizona Christian School Tuition Organization v. Winn:
Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion. Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options?
In the individual-mandate litigation, the government’s opening brief is comparatively weak on examples, both proactive and preemptive. Mr. Clement seizes the moment by conjuring up a parade of horribles about what the government might regulate next—examples ranging from different kinds of health care to different industries, different societal problems, and different kinds of insurance:
To pick an example from the “health care services” realm, some of the high costs generated by emergency dental care could have been prevented by regular trips to the dentist’s office. The dynamic involves the same cost-shifting potential arising from the humane impulse not to deny care in emergency situations that the federal government suggests makes the mandate unique. It would hardly be “irrational” for Congress to attempt to reduce that burden on the health care services market by mandating that everyone visit the dentist twice a year.
Problems in the automobile industry could be solved by mandatory new car purchases. The congressional interest in ensuring the viability of the agricultural industry, which has typically been addressed through subsidies, could be furthered instead by compelling the purchase of agricultural products. Individuals’ surprising unreceptiveness to substantial incentives to invest in 401(k) accounts could be overcome by mandating such investments. And so on. Most economic problems involve questions of demand and supply, and if Congress has the power not just to regulate commercial suppliers and those who voluntarily enter the market, but to compel demand as well, then we have truly entered a brave, new world.
[L]ife insurance and burial insurance both finance far more universal needs that are every bit as likely to arise “from a bolt-from-the-blue event,” and will be paid for one way or another even if individuals fail to plan for them.
IV. Lighter Than Air
Most briefs feel heavy, even dreary. Mr. Clement’s brief feels light and bright.
But as great editors often say, “If it reads easy, it wrote hard.” So how does Mr. Clement make it work? I offer an eight-part recipe below.
Yet the Court did not hesitate to hold the take-title provision facially unconstitutional once it concluded that the means Congress employed in that provision were “inconsistent with the federal structure of our Government established by the Constitution.” Printz is no different.
The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true.
Individuals’ surprising unreceptiveness to substantial incentives to invest in 401(k) accounts could be overcome by mandating such investments. And so on.
How much easier, for example, to support the price of wheat by compelling individuals to purchase wheat than to devise an elaborate system of subsidies and quotas and limit on-farm consumption to prevent an indirect effect on prices. And how much easier to stimulate the economy and promote the automobile industry by compelling new car purchases rather than by merely offering incentives, such as “cash for clunkers.”
But an otherwise invalid statutory provision derives no immunity from the company it keeps.
But that argument is another dead end because the penalty plainly operates as a penalty, not a tax.
It would be an odd notion of limited and enumerated powers that allowed the comprehensiveness of surrounding legitimate regulations to empower Congress to go the final mile and compel individuals to enter into its regulatory sphere.
The statute the federal government defends under the tax power is not the statute that Congress enacted. In that statute, the penalty provision is merely the tail and the mandate is the proverbial dog, not vice-versa.
To be clear, “applicable individual” is just the ACA’s legalistic and vaguely Orwellian way of referring to virtually every human being lawfully residing in this country.
But such amendments were not proposed even by antifederalists deeply suspicious of the power of the new federal government for the rather obvious reason that the Commerce Clause was not some vortex of authority that rendered the entire process of enumeration beside the point.
The power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States.
In all events, the federal government gains nothing by asking the Court to jettison both the mandate and the penalty and replace them with a tax, as the hypothetical tax statute the federal government proposes would be no more constitutional than the statute Congress actually enacted.
The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions . . .”
What is more, the Court did so for the very same reason that dooms the federal government’s arguments here: because the means Congress adopted were neither valid exercises of the commerce power itself nor means “proper for carrying into Execution” that power.
For example, most individuals living in a flood zone will suffer flood-related losses at some point, and those losses are likely to be shifted to the rest of society through mechanisms such as publicly funded disaster relief. And the same kind of cost-shifting is just as inevitable in markets for basic necessities such as food and clothing, even though they are not financed by insurance.
Rather than attempt to place any meaningful limits on the power that Congress actually asserted in the ACA, the federal government focuses most of its efforts on recharacterizing the individual mandate as a regulation of “the timing and method of financing the purchase of health care services.” But the federal government’s euphemistic description cannot obscure the simple reality that that is not what the individual mandate does.
A power to control every class of decisions that has a substantial effect on interstate commerce would be nothing less than a power to control nearly every decision that an individual makes. Nor may the federal government save the mandate by resort to that “last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause.”
Mr. Clement favors my Triple-A set of “also,” “although,” and “about”—not the heavier constructions like “furthermore,” “despite the fact that,” “with respect to,” and “regarding” that most lawyers love all too much:
The court also rejected the federal government’s attempt to characterize the mandate as regulating participation in the market for health care services, as opposed to the market for health insurance . . . .
Although the court noted that Congress has regulated certain facets of both markets, it concluded that “[i]t simply will not suffice to say that, because Congress has regulated broadly in a field, it may regulate in any fashion it pleases.”
The lack of apprehensions about the new power and the contrast between “regulate” and the surrounding terms that far more naturally empowered the federal government to establish, constitute, raise, coin, or otherwise bring things into existence suffices to make the point.
The power to force individuals to engage in commercial transactions against their will was the kind of police power that they reserved to state governments more directly accountable to the people (or “applicable individuals,” as the ACA would have it).
If Congress really had this remarkable authority, it would not have waited 220 years to exercise it. If this power really existed, both our Constitution and our constitutional history would look fundamentally different.
The federal government spends billions of dollars feeding the hungry, clothing the poor, and sheltering the homeless.
The reason why the mandate’s penalty provision is not labeled a tax, is not structured as a tax, and is not grounded in Congress’ tax power, and why the President emphatically assured the public that it is not a tax, is because the political branches lacked the public support to enact a tax.
The statute the federal government defends under the tax power is not the statute that Congress enacted. In that statute, the penalty provision is merely the tail and the mandate is the proverbial dog, not vice-versa. And that statute imposes a command that is unprecedented and invokes a power that is both unbounded and not included among the limited and enumerated powers granted to Congress.
V. Take Me by the Hand
Lawyers in my workshops often think I’m joking when I say that counting how many different transition words and phrases appear in a document can help you gauge the writer’s overall skill level. It’s no joke! If all you see are “nevertheless” and “additionally” and “consequently,” you know you’re in the hands of a lawyer whose persuasive writing could use more passion and variety and rhetorical force.
Mr. Clement is the perfect teacher on this front. Of the 110 transition words and phrases on my list in Point Made, he uses almost every one—and he gives me a few ideas to add to my next version.
Here’s just a sampling of the many ways that Mr. Clement links his points: “in that respect”; “in short”; “indeed”; “in all events”; “by contrast”; “in the same way”; “in any event”; “all of that may be true, but”; “for instance”; “quite the contrary”; “what is more”; “the bottom line”; “if anything”; “to be sure”; and “that is why.”
Ending with his flurry of rhetorical constructions is apt. To my mind, if you stripped this brief of its citations, you’d have an example of sterling English prose, not just an example of good legal writing. Whether you agree with Mr. Clement’s arguments or not, infusing your own writing with more of his passion and polish would offer the kind of insurance that we can all endorse.
About the Author
The President of Legal Writing Pro and an adjunct professor at George Washington University Law School, Ross Guberman is the author of Point Made: How to Write Like the Nation’s Top Advocates (Oxford 2011). He has conducted more than 1,000 workshops for law firms, federal judges, and governmental agencies. Ross can be reached at firstname.lastname@example.org.