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1/ No, Barr couldn't have been "rolled" because *he's the decision-maker,*not merely one voice at the table, as the Politico story implies. He has the statutory authority to decide what argument the U.S. will make.
@elianayjohnson @burgessev @nicholas_bagley
@elianayjohnson @burgessev @nicholas_bagley
2/ The Chief of Staff and Domestic Policy Advisor have no legal authority at all. Now, of course if the POTUS himself told Barr that, in his considered (!) legal view, the entire ACA is inseverable from 5000A (a laughable idea, of course--both on the merits and ...
3/ ... the very notion that Trump has a considered legal view), then Barr is entitled to file a brief that reflects the President's view, *if* Barr thinks that view is legally defensible. If, however, he thinks (like all other serious lawyers) that it's indefensible, ...
4/ ... then he can't file that brief, and if the POTUS insists he do so he has (or should have) virtually no choice but to resign. So the Politico story merely raises, but doesn't answer, the key questions: 1. Did Barr argue that this severability view was indefensible, ...
5/ ... or merely a bad idea? 2. If the former (indefensible), what difference does it make who was urging him (because again, it's his call) to make that argument? 3. Did Trump himself instruct Barr to make the argument? 4. If not, why is Barr making it?
6/ 5. If Trump insisted Barr make the argument ...... and Barr thinks it's indefensible, why is he still in office and acting in a way he thinks the law does not support?
We haven't yet heard this whole story.
@walterdellinger
We haven't yet heard this whole story.
@walterdellinger
7/ In fairness, I should add that there are at least two important legal actors--Clarence Thomas and Sam Alito--who think the argument is not only not absurd, but correct: See pp. 57-64 of the NFIB dissent.
law.cornell.edu/supct/pdf/11-3…
law.cornell.edu/supct/pdf/11-3…
8/ Clarification: Thomas and Alito might think the severability argument plausible *if* they first bought the absurd premise of plaintiffs' argument, which is that the 2017 Congress strengthened, not weakened, a "mandate" to maintain insurance. But that premise is indefensible.
