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Bench Memos

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Law Professor: Court Packing Will Do the Trick in Halbig v. Sebelius



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According to Washington and Lee law professor Timothy Jost, court-packing works. In an op-ed reciting the IRS’s arguments in Halbig v. Sebelius and a related Fourth Circuit case, he concludes with this observation about what happens if the plaintiffs succeed in the D.C. Circuit:

If that happens, their success will be short-lived. The U. S. Court of Appeals for the 4th Circuit seems poised to uphold the IRS rule in an identical challenge, and the entire D.C. Circuit is likely to reverse the three-judge panel if it issues such an outlier ruling. There is no secret bomb in the ACA, as the courts have told us and will tell us, and the imaginary bomb will not destroy the law.

In other words, now that President Obama has packed the D.C. Circuit, we can count on it to uphold the administration’s interpretation of Obamacare no matter what the statute actually says.



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