Today the plaintiffs in King v. Burwell filed the last brief regarding the cert petition now before the Supreme Court. It effectively rebuts each of the government’s arguments against Supreme Court review.
For starters, there’s some interesting history about the government’s switch in its tactics on timing. When Obamacare was first being litigated several years ago and the government lost in the Eleventh Circuit, it quickly sought Supreme Court review even though there were no imminent deadlines facing it regarding Obamacare taking effect. Now, on the other hand, we have, in the words of the reply brief, “billions of taxpayer dollars … pouring out of the Treasury without congressional authorization and millions of Americans … ordering their lives around an impugned regulation.” And instead of supporting a quick Supreme Court review of King, the government instead asks the Supreme Court to hold off until the D.C. Circuit completes its en banc reconsideration of Halbig—a reconsideration that the government itself requested.
And while the reply brief’s starting point is what the government did, its conclusion succinctly describes what the government did not do. It did not mention Jonathan Gruber at all. Gruber, “the ACA architect whose work it cited in every brief below … is nowhere mentioned now.”
That fittingly leads us back to the title of our earlier post: Where in the World is Jonathan Gruber? (Or, for you more plain-spoken Waldo fans, Find Gruber!)