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A Court Without Law


A 5CA panel appears ready and willing to use farcically stupid arguments to strike down most or all of the Affordable Care Act:

The Republicans, by contrast, came to court today wearing their partisan hats. When Samuel Siegel, the first of two lawyers defending the law, was at the podium for his portion of the arguments, Judges Jennifer Elrod and Kurt Englehardt peppered him with questions, many of them delivered in a mocking tone. At one point, Englehardt even accused Siegel of making an argument that betrays the American Revolutionary War.

Meanwhile, the three lawyers opposing the law did receive some critical questions from the two Republican judges, but those questions were not especially animated and they soon trailed off. Kyle Hawkins, the lawyer who delivered the bulk of the anti-Obamacare arguments, spent much of his time speaking before a silent panel, punctuated mainly by listless questions from Elrod that seemed designed primarily to give him something to talk about.

The most ominous sign of all is that the Republicans spent a considerable amount of time discussing what would be the appropriate scope of a court order striking the Affordable Care Act — a matter that obviously is only relevant if they intend to strike the law.

An estimated 24,000 Americans will die every single year, who otherwise would have lived, if Obamacare is ultimately struck down.

Hey, John Roberts used a very weak legal argument to make the deaths of thousands of people a year inevitable — they’re just upping the ante!

The Republican judges-in-a-formal-sense also decided to re-use Antonin Scalia’s pull-my-finger routine from the Moops oral argument:

Over all, though, the panel spent the most time on the question of whether the rest of the law should fall if Judge O’Connor was correct in scrapping the insurance mandate — and Judge Elrod and Judge Engelhardt, based on their questioning, seemed to firmly believe he was. Judge Engelhardt asked Mr. Letter, the House lawyer, why Congress could not remedy the situation by writing a new health law or set of laws.

“They could do this tomorrow,” Judge Engelhardt said, leading Mr. Letter to dryly point out that Mr. Trump would need to sign off on new laws, too.

Enjoy your next decades of federal judges striking down legislative acts based not only on kooky constitutional theories but on a willful blindness about how Congress actually works, everybody!

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