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March 03, 2011

Judge Vinson to Obama Admin: You Didn't Really Need Clarification and You're Probably Acting in Bad Faith, So Now You've Got Just Seven Days to Appeal, Chumps

District Court Judge Roger Vinson has issued his ruling on the Obama Administration's "motion to clarify" (see previous post) his order striking the entirety of ObamaCare as unconstitutional.

The 20-page order (PDF) says that the judge has had enough pussyfooting around, it's time to shit or git. To that end, (1) he meant it when he said that ObamaCare was unconstitutional, (2) it was unlawful of the Obama Administration to continue implementation despite his order, and (3) as an act of judicial grace, he'll construe this bullshit motion as a request for a stay, but only on the condition that the Administration files an expedited appeal within seven days:

While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import. Accordingly, I will attempt to synopsize the 78-page order and clarify its intended effect. To that extent, the defendants’ motion to clarify is GRANTED.

[synopsis snipped]

So to “clarify” my order and judgment: The individual mandate was declared
unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to “clarify.” [FN6]

[FN6] The defendants have suggested in reply to the plaintiffs’ response that the reason for the delay was due to the fact that my order “required careful analysis,” and it was only after this “careful review” that the defendants could determine its “potential impact” with respect to implementation of the Act (see doc. 164 at 11). This seems contrary to media reports that the White House declared within hours after entry of my order that “implementation will proceed apace” regardless of the ruling. See, e.g., N.C. Aizenman and Amy Goldstein, U.S. Judge in Florida Rejects Health Law, Washington Post, Feb. 1, 2011, at A01 (quoting a senior White House official).

If you're detecting sarcasm, you're not alone. The decision fairly drips with disdain for the Obama Administration's tactics here. I can't reasonably pluck all of it out to show you, but if you have the faintest interest in this litigation, go ahead and read the order. It's not that long and it effectively summarizes the rest of the ObamaCare litigation too.

Oh, remember that misleading citation in the motion to clarify? Judge Vinson was not amused:

“A declaratory judgment cannot be enforced by contempt proceedings, but it has the same effect as an injunction in fixing the parties’ legal entitlements . . . . A litigant who tries to evade a federal court’s judgment --- and a declaratory judgment is a real judgment, not just a bit of friendly advice --- will come to regret it.” Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010). If it were otherwise, a federal court’s declaratory judgment would serve “no useful purpose as a final determination of rights.” See Public Service Comm’n of Utah, v. Wycoff Co., Inc., 344 U.S. 237, 247, 73 S. Ct. 236, 97 L. Ed. 2d 291 (1952). For the defendants to suggest that they were entitled (or that in the weeks after my order was issued they thought they might be entitled) to basically ignore my declaratory judgment until “after appellate review is exhausted” is unsupported in the law. [FN5]

[FN5]The defendants have claimed that “[i]n other declaratory judgment cases, pending appellate review, ‘the Government has been free to continue to apply [a]statute’ following entry of a declaratory judgment.” See Def. Mot. at 4-5 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); Carreno v. Johnson, 899 F. Supp. 624 (S. D. Fla. 1995)). Quoting from Mendoza-Martinez, the defendants further claim that “‘a single federal judge’” is not authorized to “‘paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order’ prior to appellate review.” See id. at 5. The two cited cases are plainly inapposite for the reasons identified by the plaintiffs. See Pl. Resp. at 4-5. Mendoza-Martinez, for example, applied a statute that precluded single-judge district courts from enjoining an Act of Congress; but that statute was repealed by Congress thirty-five years ago, in 1976. The defendants’ selective quoting from those cases --- to suggest that the federal government may simply ignore a declaratory judgment by a district court until the appeals process has fully run its course --- borders on misrepresentation.

Despite the Obama Administration's misbehavior, Judge Vinson very charitably construes the motion to clarify as a request for a stay of his order because the Administration said in its motion that it would ask for a stay if the judge held ObamaCare unconstitutional again. The judge seems concerned that the Administration has simply been engaged in delaying tactics. He links the two issues:

For example, my declaratory judgment, of course, only applies to the parties to this litigation. The State of Michigan is one of those parties. However, a federal district court in Michigan has already upheld the Act and the individual mandate. See Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010). Can (or should) I enjoin and halt implementation of the Act in a state where one of its federal courts has held it to be Constitutional? In addition, many of the plaintiff states have publicly represented that they will immediately halt implementation of the Act in light of my declaratory judgment, while at least eight plaintiff states (as identified by the defendants in their motion and reply) have suggested that, in an abundance of caution, they will not stop implementing the Act pending appeal. In addition to these apparent disagreements among the plaintiff states, there is even disagreement within the plaintiff states as to whether the implementation should continue pending appeal. For example, while the plaintiffs (a group that includes the Attorney General of Washington) have requested that I enjoin the defendants from implementing the Act, the Governor of Washington has just filed an amicus brief specifically opposing that request (doc. 163).

At this point in time, and in light of all this uncertainty, it would be difficult to deny the defendants a stay pending appeal. Nonetheless, in light of the potential for ongoing injury to the plaintiffs, the stay should be in place for as short of time as possible (months, and not years), as discussed immediately below.


As both sides have repeatedly emphasized throughout this case, the Act seeks to comprehensively reform and regulate more than one-sixth of the national economy. It does so via several hundred statutory provisions and thousands of regulations that put myriad obligations and responsibilities on individuals, employers, and the states. It has generated considerable uncertainty while the Constitutionality of the Act is being litigated in the courts. The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their notice of appeal.

It should not be at all difficult or challenging to “fast-track” this case. The
briefing with respect to the general issues involved are mostly already done, as the federal government is currently defending several other similar challenges to the Act that are making their way through the appellate courts. Furthermore, the legal issues specific to this case have already been fully and very competently briefed. With a few additional modifications and edits (to comply with the appellate rules), the parties could probably just change the caption of the case, add colored covers, and be done with their briefing.

Burn. Therefore:

After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. However, the stay will be conditioned upon the defendants filing their anticipated appeal within seven (7) calendar days of this order and seeking an expedited appellate review, either in the Court of Appeals or with the Supreme Court under Rule 11 of that Court.

It's clear from this order that Judge Vinson is not going to be receptive to future motions from the Administration on this. If they want a stay, they're going to either have to appeal this stay order to the Eleventh Circuit, or just give in and appeal (on an expedited basis) his original order striking ObamaCare as unconstitutional.

digg this
posted by Gabriel Malor at 02:52 PM

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