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Sissel v. HHS (the origination clause case) has been slated for oral argument on May 8. It will be heard by a nuclear option panel: Judges Rogers, Pillard, and Wilkins. Pillard and Wilkins were confirmed only after the Senate invoked the nuclear option.

By the way, since the nuclear option was invoked for the three D.C. Circuit nominees on November 21, exactly 4 months ago, has there been a single other instance where Senate Majority leader Reid has hit the trigger ? Of course not. In fact, several Circuit nominees have continued to stall and linger. The reason for the nuclear option was never a judicial emergency, but a political need.

It was to get certain judges onto the D.C. Circuit in particular, to hear appeals just like this about Obamacare. And now, it seems, it worked.

Totally unsurprising news: the White House, and not the Treasury Department, made the call to delay the employer mandate:

“Information obtained by the Committee suggests that last year’s decision to delay the employer mandate was made by the White House and not the Treasury Department,” the letter continues. “We were surprised to learn that the White House Chief of Staff knew about the employer mandate delay prior to the head of the department implementing the program. This finding raises serious questions about whether the White House directed the delay of the employer mandate for political reasons.”

Even worse, no one in the Treasury Department inquired into the legality of the decision to delay it:

Issa cited testimony from Treasury Assistant Secretary for Tax Policy Mark Mazur, who in an interview with Oversight said repeatedly he couldn’t recall if anyone at Treasury discussed whether the agency had the legal authority to delay the mandate.

“These admissions are stunning: there are more than two thousand attorneys in the Department of Treasury, and the official responsible for tax policy cannot recall a single one inquiring into the legal authority for the employer mandate delay,” the letter says. “Furthermore, Mr. Mazur’s responses are inconsistent with the Department’s claim that it relied upon an asserted authority under § 7805 of the Internal Revenue Code.”

The implementation of Obamacare has been purely political, and totally in disregard for the normal administrative process. This is government by blog post at its finest.

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 [1484667] 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.

In other news, Sissel (the origination clause case) has been slated for oral argument on May 8. It has the nuclear option panel: Judges Rogers, Pillard, and Wilkins.

I now have in possession the 1954 Cornellian, which was the year that Justice Ginsburg–then Ruth Joan Bader–graduated from Cornell.

Look at Ruth. She looks fabulous, as always

Compare with her High School yearbook photo four years earlier.

Ruth Joan Bader graduated from James Madison High School (you can see her High School Yearbook photo here), was in the Arts and Sciences group. She was in the ΑΕΦ sorority, historically a Jewish fraternal organization. Of course, the outstanding student was in Phi Beta Kappa.

Alas, RB (not yet RBG) was absent for her group photo ΑΕΦ !

You can see my pictures from Justice Scalia’s yearbook here.

H/T MM who got me this amazing treasure.

Here is a wood-cutting of the New Orleans Slaughterhouse. So this is what a meat monopoly looks like!