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January 23, 2012

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I. Glenn Cohen

Kim, I've read the rehearing petition (by my old office at the DOJ's Civil Division, Appellate Staff). It basically shows some legislative history and other statutes that suggest the reading of NOTA given by the 9th Circuit was off. It also carps about the fact that the issue wasn't argued below, or really briefed, but came up mostly in the oral argument (which I listened to in preparation for my NEJM piece).
Having worked at this office before, my guess is that there was some pressure from HHS or other affected agencies to file for rehearing en banc, and they thought there was not too much to lose in pressing this limited statutory construction argument upon rehearing with the thought that it was unlikely to re-open the Equal Protection or Substantive Due Process can of worms. All that said, the Solicitor General's approval is required to file for rehearing in such a case, so the decision was one that was definitely thought out and not merely knee-jerk.

Kim Krawiec

Thanks for the insights, Glenn. If you're able to share a copy of the rehearing petition, I'd love to see it. Couldn't find it searching around on-line last night.

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