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February 19, 2011

Obama Admin: "Excuse Me, I'm Sure I Didn't Hear You Right. Did You Really Really Just Call My Healthcare Law Unconstitutional?"

On Thursday, the Obama Administration went back to court to get a "clarification" of Judge Vinson's ruling striking down ObamaCare as unconstitutional. The states involved in the lawsuit have until next Thursday to respond. The Administration wants to know if it can continue implementing the law without getting a stay of Judge Vinson's order first. (Short answer: no.)

There has been a great deal of confusion on this point, however, from the states, the Administration, the lawyers involved, and especially the public. I've been meaning to pick up the issue, but just didn't have time until now. My father emailed me earlier in the week to ask if tanning salons will have to pay the tanning tax this year, since the law has been declared unconstitutional. (Answer: yes, if the IRS demands it; you can ask Wesley Snipes about messing around with the IRS . . . when he gets out of prison.)

First, though, click over to Aaron Worthing writing at Patterico's because he notes the glaring error in the Administration's motion for clarification. Worthing calls it "dishonesty" and I'll be straight with you: it's certainly misleading and if I wrote that motion I'd be waking up with cold sweats in the middle of the night for fear of getting sanctioned by the Court or a bar association.

Many people have asked about the effect of a declaratory judgment, like the one Judge Vinson made declaring ObamaCare unconstitutional. They also want to know why he didn't just issue an injunction. Particularly astute court-watchers want to know why the Obama Administration didn't just ask for a stay of Judge Vinson's decision when it was issued and make the whole issue go away until the appeal is resolved. I don't have any inside information on the motivations for any of these people, but in the course of explaining each of these judicial mechanisms I'll tell you what I think is going on here.

A declaratory judgment ("DJ") resolves rights between the parties of a lawsuit. In other words, it describes how they must treat each other going forward. An injunction, on the other hand, binds one or both parties to do or refrain from doing something in the future, and not just in relation to each other, but in relation to everyone. Judge Vinson didn't issue an injunction because of, in his own words:

a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction. . . . There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

Several important, but unspoken consequences followed from this decision. First, though a DJ is like an injunction it is not an injunction. An injunction binds all parties everywhere, which means that if ObamaCare were enjoined as unconstitutionally beyond the power of the federal government then it would be beyond the power of the federal government everywhere. Obama would have to halt implementation in all states because the federal government is a party. On the other hand a DJ just describes rights between the parties and so wouldn't impact implementation outside of the 26 plaintiff states (without further action).

Yes, I know that's basically a ridiculous distinction--either the law is constitutional or it is not constitutional; it can't be constitutional in some states and not others--but this is law. These separate mechanisms exist for separate purposes and there is only a presumption that government officials will comply with a DJ as if it were an injunction. (I'd say that the Obama Administration has rebutted the presumption.)

So the next step is for states or individuals who do not want to comply with ObamaCare regulations or mandates to refuse and dare the Administration to complain to the courts. That's what it did Thursday by means of its "motion for clarification." The motion (PDF) notes the inconsistent stands several states have made and is asking the judge if he really really meant it when he said the law was unconstitutionally beyond the power of the federal government. The Administration is hoping to get a de facto stay of the decision without actually having to go through the effort to get one. (I explain below why the Administration would want to avoid a stay motion.)

Okay, then after an injunction or after Judge Vinson rules on the motion to clarify, the Administration will have no choice, I'm sure, but to ask that his order be stayed pending appeal. A stay is a judicial mechanism that preserves the status quo while litigation ensues. (Hah. Pun.)

Why would Judge Vinson do it this way? Well, it means the Obama Administration was always going to have to come crawling back for at least one more round of abuse when states started suggesting that they didn't have to comply with Secretary Sebelius' demands. And I have no doubt the judge won't pull his punches, just as he didn't in his Tea Party-referencing decision (the original Tea Party).

To get a stay, the Administration will have to demonstrate (1) likelihood of success on the merits; (2) likelihood the it will suffer irreparable harm absent a stay; (3) whether issuance of a stay will substantially injure the other parties in the proceeding; and (4) that the stay is in the public interest.

Anybody who read Judge Vinson's decision (PDF) on the merits want to guess how he will evaluate those factors when it comes to a stay? Expect an especially pointed comment on the "public interest."

That explains why the Administration was hesitant to ask for a stay right from the start, since it would pile one PR disaster on another. (If they'd been smart, they would have asked for the stay before the decision on the merits, like the Prop 8 proponents did. It got it out of the way fast, so they could then go right to the appellate court.) Now the Administration has to go back to Judge Vinson before it can seek a stay at the Eleventh Circuit. Which will be a whole 'nother gamble and potential PR disaster, since there's no way to know at this point which Circuit judges would get the motion.

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posted by Gabriel Malor at 12:07 PM

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