As you would expect, an excellent analysis. Particularly worth emphasis:
Flash back to December 2010, when the Commerce Clause challenges to the new law were beginning to fill the legal pipeline en route to the Supreme Court. At a conference held at the American Enterprise Institute, a conservative research organization in Washington, Michael S. Greve, an A.E.I. scholar and chairman of the Competitive Enterprise Institute, had this to say in reference to the Affordable Care Act:
“This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.” Mr. Greve went on to urge a litigating strategy that looked beyond the mandate to “concentrate on bits and pieces of this law.”
Meanwhile, more reviews of the latest troofer brief and the pathetic attempts to defend it are in, and they are appropriately scathing. The final point, on Adler’s egregiously bad faith defense of the “Moops invaded Spain” version of ACA trooferism, is especially good.
As a couple commenters noted, underscoring the risible quality of the arguments in the brief is the bizarre amount of italicization, which gives off a stronger whiff of desperation than a high school boy’s second application of Axe Body Spray before his first date. As elm accurately summarizes their stylistic choices:
Firstly, they use it for emphasis on rather random verbs. They italicize roughly one out of every three verbs. Secondly, they italicize adjectives and adverbs that are, by themselves, solely used for emphasis. Thirdly, they italicize every usage of an enumerating clause. Fourthly, they seem to italicize nouns at random throughout the entire brief.
I’ve never seen anything like it in a 21st century text, and I’ve been grading undergraduate mock case briefs the whole time. Still, after the D.C. Circuit en banc nukes the Halbig panel’s opinion from orbit, I feel that in subsequent litigation the troofers will have to up their game on their use of the typographic arts to express their self-refuting arguments. I offer this sample for their use free of charge:
There is a good reason why Congress, expressing its unambiguous intent to deny credits to people purchasing insurance on federal exchanges to coerce the states, went to the trouble of creating a worthless federal backstop rather than just not having a federal backstop altogether. Namely, look, it’s Halley’s Comet!