Two weeks ago, the Obama administration asked Judge Vinson, the federal judge in Florida that struck down Obamacare, to order states to obey it nonetheless. I thought the administration was unlikely to prevail.
As it turns out, the administration did win, sort of, but they probably would rather they hadn’t. In a harshly worded order, Judge Vinson said he would stay his decision, but only for seven days, on the condition that the administration file an expedited appeal.
The administration, you see, has not yet gotten around to filing an appeal. In the meantime, however, they have simply proceeded as if the court had not ruled against them. When some states announced they would cease implementing the law, the administration asked the court to order them to resume, the ruling notwithstanding.
The administration presumably prefers to delay the ultimate resolution of the case by the Supreme Court for some political reason. The conditional stay forces the administration to do it now (p. 19):
As I wrote about two weeks after this litigation was filed: “the citizens of this country have an interest in having this case resolved as soon as practically possible” . . . That was nearly eleven months ago. In the time since, the battle lines have been drawn, the relevant case law marshaled, and the legal arguments refined. Almost everyone agrees that the Constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States. It is very important to everyone in this country that this case move forward as soon as practically possible.
He had sharp words for the administration’s failure to comply with his ruling (p. 14):
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.”
(Emphasis mine.) Also note that this is almost word-for-word consistent with the analysis I cited here.
He had even sharper words for the administration’s actions in light of their promise (on which they reneged) to obey a declaratory order (p. 11):
The defendants have suggested, for example, that my order and judgment could not have been intended to have the full force of an injunction because, if I had so intended, I would have been “required to apply the familiar four-factor test” to determine if injunctive relief was appropriate. . .
I did not undertake this four-factor analysis for a simple reason: it was not necessary. Even though the defendants had technically disputed that the plaintiffs could satisfy those four factors, the defendants had acknowledged in their summary judgment opposition brief that, if I were to find for the plaintiffs, separate injunctive relief would be superfluous and unnecessary. The defendants expressly assured the court that, in light of the “long-standing presumption that a declaratory judgment provides adequate relief as against an executive officer, as it will not be presumed that that officer will ignore the judgment of the Court,” any declaratory judgment in the plaintiffs’ favor “would [ ] be adequate to vindicate [the plaintiffs’] claims.”
And he found the administration’s profession of confusion frankly dishonest (footnote 6):
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. . . 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.
His sharpest words were in a footnote in which he dispensed with the administration’s argument that they should be permitted to continue to apply the law despite it being struck down (footnote 5):
The two cited cases are plainly inapposite for the reasons identified by the plaintiffs. . . 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.
That’s going to sting.