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DOJ’s Reply Brief in King: They’re under Water and They Know It

I haven’t had much time to parse the government’s reply brief in King v. Burwell. A few quick reactions:

They Know They Lose. Start of the brief (“Statement”):

The Affordable Care Act was enacted to provide “Quality, Affordable Health Care for All Americans.” Tit. I, 124 Stat. 130 (emphasis added).

An all emphasis, without more (and Congress ensured that comprehensive reach …) signals that the rest is junk. (You’re trying to make a single word trump the entire instrument.) E.g., a non-delegation brief that starts on “All legislative powers…” invokes a premise that’s been rejected 150,000 times. That brief could continue that the Founders must have meant what they said in Article I. But no one would ever say that of Congress, and most assuredly not of the Congress that passed the ACA.

Open like that: you’re under water after the first sentence. DoJ doesn’t make rookie mistakes like that; they do it here because they know they’re under water before that sentence.

Bait, Laugh.  Footnote 19 of the Government’s Brief:

Petitioners rely heavily (Br. 4-5, 42-43) on statements made by Jonathan Gruber, an economist, consultant, and supporter of the Act. But those statements were made two years after the Act was passed, and Gruber has clarified that they were taken out of context. Jonathan Gruber, Written Testimony Before the House Comm. on Oversight & Gov’t Reform 2 (Dec. 9, 2014).

Perhaps that’s the best that the government can do with this clown, but it’s wrong on every count. While petitioners would obviously love to have Professor Gruber share some more of his brilliant thoughts with the stupid voters of this country, their case “relies” not at all (let alone “heavily”) on his averments.  As for Professor Gruber’s “clarification”: who the hell takes a video out of context? Another desperate maneuver: No way on earth that plaintiffs’ counsel (Michael Carvin) will take this bait.

It’s Over.

To “realist” minds King may have been actually decided with the cert grants in the gay marriage cases. The cases will come down on the same day at the end of the Term, and so the justices will split the difference that way: freedom for gays and lesbians and then Justice Kennedy will ride off to Colorado with Dagney I-am-IJ, or whatever.

Maybe. Lets noodle over the Straussian implications of all that when it’s over. Support for now CEI’s and Mike Carvin’s true and correct take: it’s a statutory case, not a crusade.

Reader Discussion

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on January 22, 2015 at 11:56:03 am

Yeah, well the Court is under no obligation to consider Legislative intent (the court usually does that for them). Oops, I forgot, the Black robes do demonstrate deference to the Administrative Agencies with regard to "intent" and interpretation" I guess all that remains is for the "Chief Black Robe -rts" to perform another feat of adjudicatory legerdemain and insist that it is the Agency (HHS) that is doing the interpreting and we owe them Chevron deference because - well just because!!!!!

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Image of gabe
gabe
on January 22, 2015 at 12:55:46 pm

[…] DOJ’s Reply Brief in King: They’re under Water and They Know It […]

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Image of Another Step Toward Neutral Principles in Campaign Regulation - Freedom's Floodgates
Another Step Toward Neutral Principles in Campaign Regulation - Freedom's Floodgates
on January 22, 2015 at 13:01:14 pm

[…] think he sums it up quite […]

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Image of Michael Greve on the Last Day of This Supreme Court Term | Josh Blackman's Blog
Michael Greve on the Last Day of This Supreme Court Term | Josh Blackman's Blog
on January 23, 2015 at 11:59:21 am

Kill the beat in its crib. The same ideology that has given us huge, gross monster government, many models of the Post Office or the Dept. of Agriculture, is founded on a sick myth. Unfortunately it has become a form of religious faith.

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Image of johnt
johnt
on January 23, 2015 at 12:00:10 pm

Make that "beast".

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Image of johnt
johnt
on January 23, 2015 at 12:33:00 pm

And a little reminder of how obnoxious these little buggers can be:

http://www.nationalreview.com/article/397014/why-deflategate-cultural-problem-ian-tuttle

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Image of gabe
gabe
on January 25, 2015 at 08:45:23 am

"Health Care for All Americans"

Neither Obamacare nor any of the unpassed bills that preceded it included health care for All.

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Image of kbp
kbp
on January 27, 2015 at 09:06:49 am

[…] DOJ’s Reply Brief in King: They’re under Water and They Know It […]

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Image of Obama’s Nod to Crony Philanthropy - Freedom's Floodgates
Obama’s Nod to Crony Philanthropy - Freedom's Floodgates
on January 30, 2015 at 10:51:24 am

[…] Michael Greve has noted, the other side’s recourse to straw men is another sign of the weakness of the government’s […]

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Image of Is King v. Burwell Really All About the Cornhusker Kickback? - Judicial Crisis Network
Is King v. Burwell Really All About the Cornhusker Kickback? - Judicial Crisis Network
on February 03, 2015 at 08:55:49 am

[…] DOJ’s Reply Brief in King: They’re under Water and They Know It […]

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Image of Federalism’s New Defenders: Obamacare Supporters - Freedom's Floodgates
Federalism’s New Defenders: Obamacare Supporters - Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.