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January 31, 2011

Update: Obama Admin Must Halt Implementation and Current Enforcement, Absent a Stay Which Has Not Yet Been Granted

This question has come up a few places. I've also seen incorrect media reports that Judge Vinson's decision declaring all of ObamaCare unconstitutional "will have no instant effect on implementation." This is probably fueled in part because "senior White House advisors" are apparently saying that implementation will continue while the lawsuits play out.

That is incorrect, at least for the moment. The law is unconstitutional and that ruling is binding on the parties. Not just the 26 plaintiff states, mind you, as I've also seen erroneously reported. All parties to a lawsuit are bound, including and especially the defendants, that is, the U.S. departments attempting to implement ObamaCare.

That means that at this moment all parts of the law are unenforceable, including the guaranteed issue rule, the preparations for the exchanges, the minimum standards, the Medicaid expansion, the FSA adjustment, the 1099 debacle, and, of course, the individual mandate. The Obama Administration risks a contempt order if it attempts to continue to impose any of these ObamaCare requirements on the states.

Now, don't get too excited. The Administration will, I guarantee it, be seeking to stay Judge Vinson's order pending appeal. At the moment, there is no order on a stay and the District Court's docket is closed for the day. So, at the earliest we're not looking at Judge Vinson taking a crack at their stay motion until tomorrow. And if he denies the Administration stay motion, they'll seek it from the 11th Circuit. The appellate court will very likely grant it, given the disparate court decisions so far and because the stakes are so high. I can't imagine that the Administration would have to go so far as the Supreme Court to get a stay, but any way it happens, they're going to get one eventually. I guarantee that too.

That, by the way, is what happens next. First comes a stay motion, then the appeal notice. At which point the stay motion will be resolved and the case will be set for briefing. Briefing could take up to six months or longer. And it could be even longer until the case gets set for oral argument (which, in a case like this it certainly will be). After that comes a decision a good year down the road. Then possible en banc review and only then a petition to the Supreme Court. So this is a long process. We're talking years.

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posted by Gabriel Malor at 06:38 PM

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