The argument in Larrabee just finished at the DC Circuit (video link below). The one substantive point that came through--even more so than from the Government's brief--is that the Government absolutely refuses to impose any limits on Congressional determinations of who is or is not in the land and naval forces. Government counsel proposed a "sham" limitation but refused to define it, and also repeatedly refused to answer Judge Tatel's questions about hard cases, responding "but that's not this case." This stubbornness was especially egregious in the rebuttal portion at the very end.
I have a non-substantive question for appellate counsel: isn't this really bad form? How can you avoid a hypothetical in this way? I don't think I've ever seen an oral argument where counsel refused the questions in this manner. Has anyone else seen this (or done it themselves)?
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