Exaggerated Claims: Swallow at Supreme Court to “ensure” unconstitutionality of Obamacare?

If you’re on the Swallow for AG campaign email list (and I suspect that I will shortly be purged from that list), you just got an email making some exaggerated claims about John Swallow‘s role in the Supreme Court’s review of the Affordable Care Act.

In short, the email walks through a loose timeline for the Affordable Care Act (also known as “Obamacare” more colloquially), putting Swallow at each crossroad of the legal battle. But for him, and Utah, Obamacare might not have made it before the Supreme Court.

Except that isn’t quite how it happened. We’ve already learned that Idaho had passed a law that gave standing to challenge Obamacare, and that Utah jumped on board. Sincerely, of course, but not necessarily crucial to the fight against the Affordable Care Act. It was important politically, but not really legally.

Now, Swallow’s campaign is claiming that he was at the Supreme Court to “ensure” the law was found unconstitutional. It’s a claim that stretches the truth.

Here’s a picture of the claim from Swallow’s campaign:

There is some question about the accuracy of the campaign's claim.

Swallow was in the observation section–the chamber–of the Court during the arguments, but he wasn’t really there “representing” Utah to the Supreme Court and he didn’t have any role to “ensure” that Obamacare be overturned during that trip. In fact, there wasn’t a ton for him to do to “ensure” that Obamacare was ruled unconstitutional. Mostly, his role involved “sitting” and “observing.” Also, later that week, while still there on taxpayer dollars, it involved “campaigning.”

I wanted to be sure, though, that in all of the news I had listened to, read, and watched that week during the historic oral arguments (see posts on it here and here), that I hadn’t missed something.  Maybe Swallow really was doing something to “ensure” it was overturned during that March 26, 2012 date the campaign cites?

No, not really.

The closest article I could find was on March 27, 2012 in the Salt Lake Tribune that indicated Swallow was there…along with four hundred others, including attorneys from twenty-six states who were also on the lawsuit and observing the oral arguments that day.  Other than that, I could not find anything to indicate a more active role in the case. Other lawyers argued, other lawyers filed the briefs, and other lawyers responded to the judges questions.

Other than that, the most prominent mention that Swallow received was for a campaign call he made to 55,000 Utahns during his taxpayer funded trip to D.C. And Swallow did not appear happy about that mention.

“I have a right when I’m not working to do whatever I want to do,” Swallow said. “I have a right to campaign. I have a right to decide if I want to make something an official call or something to promote my candidacy.”  Truly the words of someone intensely focused on fighting Obamacare.

So: was Swallow in D.C. to “ensure” the Affordable Care Act was ruled unconstitutional? Or was he there to promote his candidacy?  Because while I am sure that it was thrilling to be there for the arguments, I’m not convinced that his presence was necessary in the chamber to “represent Utah” or strike fear into Justice Kennedy‘s wavering heart and “ensure” anything other than a call to voters to say “hey! Look! I’m in D.C at the same time as Obamacare is being argued, so, you know–vote for me because there must be an association between being here and my role in the case.”

That’s my theory. It’s a campaign gimmick. If only he hadn’t made that call to exploit his taxpayer-funded trip to D.C.

Other attorneys in the Attorney General’s office, and who were closely connected to the lawsuit against Obamacare, have called Swallow’s role in the case into question, too:

[…]Utah’s former solicitor general, Annina Mitchell, who was the designated point person for the state [on the Obamacare challenge] up until her retirement last year, said Swallow’s claim is exaggerated.

“That’s so disappointing. It’s not true,” Mitchell told The Tribune Friday. “I’m disappointed, as someone who worked with him, that John feels it necessary to mislead Utahns about his role.”

Mitchell, who served at the Attorney General’s office for twenty years (which also means she has more than twice as many years actually practicing law as John Swallow,  where “practicing” means more than just having a law degree), was solicitor general for the state for nine years. No small fry in the legal community. When she speaks, other lawyers pay attention. With her litigation experience, she was assigned to the case for her litigation background, not her political connection.  She knew who was lifting the load.

“I don’t remember John Swallow ever making a substantive comment in those conference calls,” Mitchell said. “We read and evaluated the materials, but we’re not talking about a huge investment of time or litigation skill.”

Back to the beginning: Swallows campaign has exaggerated his role in the fight against the Affordable Care Act. And if they’re willing to exaggerate that, what else are they willing to exaggerate about Swallow?

(I’m not even clear that John Swallow always understood the legal path the case would need to take to get to the US Supreme Court. At one point in 2011, he tweeted that the Florida Supreme Court was about to rule on the case, instead of the District Court of Florida. [blackbirdpie url=”https://twitter.com/JohneSwallow/status/32122629380898816″] Any first year law student could tell you that a challenge to a federal law like Obamacare would need to come through federal court, not state court. Further, anyone who was as closely connected to the case–let alone leading it, would know which court was about to rule on it. It may be a minor mix up, but for a lawyer who is claiming leadership on the case, it’s an embarrassing faux pas that could have been resolved even by just looking at the newspaper that day).

Related articles

• Digging deeper: Utah’s Attorney General race (fox13now.com)
• Obamacare before the Supreme Court: “The Emperor Has No Clothes!” (publiusonline.com)
• The Supreme Court and Obamacare: What happens next (washingtonpost.com)