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.