I blogged earlier about the government’s bizarre 28(j) in Halbig v. Sebelius, where the United States took the position even if the regulation is found to be invalid, the court’s reasoning would not extend beyond the named plaintiffs. This is surreal. The challengers filed a motion to strike.
Today, the D.C. Circuit issued a per curiam order deferring consideration of the motion to strike. From the docket entry:
PER CURIAM ORDER filed  deferring consideration of motion to strike document [1484024-2] pending further order of the Court. Before Judges: Griffith, Edwards and Randolph. [14-5018]
The government should be prepared to argue this position in court. The D.C. Circuit probably did not appreciate being told, quietly in a 28(j) that they lack jurisdiction to strike down an invalid law. And I’ve learned that the #4 lawyer in DOJ appellate will argue this case. So this will be a fun argument.