"But What Did You Really Mean by That?"

"But What Did You Really Mean by That?"

I'm belatedly getting around to what's turned out to be a great read: Judge Vinson's ruling on the federal government's bizarre "motion to clarify" last month's declaratory judgment holding ObamaCare unconstitutional and void. It's only 20 pages long and written in plain English, so I recommend it to you.

The judge held his temper admirably in the face of an outrageous affectation of incomprehension on the part of some government lawyer hacks. These guys lost their case, failed to appeal it for over two weeks, failed even to seek a stay, and yet asked the court last Thursday to believe that they're in some kind of doubt over whether the judgment was supposed to have any effect pending appeal. This is black-letter first-year lawyer stuff: an order takes effect unless you get it stayed, or unless there is a rule or statute that automatically stays it for some period or under specific conditions. If you can't get the judge who ruled against you to stay his own judgment, you go immediately to the next higher court and ask for a stay there. You do all this with an eye on the deadlines -- and the deadlines don't depend on how long you think it ought to take for your lawyers to complete a "careful analysis" of your ruling. If you're really having trouble understanding what the hard words mean and you think you need to hire smarter lawyers to explain them to you, you hotfoot it into court and ask for an extension to permit to get that done. Otherwise, the status quo is whatever the order says, not what everyone assumed was the case before the lawsuit, or what you hope will be the case if and when you win on appeal. In this case, the status quo is that, at least with respect to the majority of states who filed the suit, ObamaCare is null, void, dead. It's an ex-law. It's joined the Choir Invisible.

Nor does the fact that this is a "declaratory" judgment change anything. Declaratory judgments are what you ask for when you're not seeking damages or other relief for a past action, but instead are asking the court to rule, somewhat in the abstract, on what the parties' legal obligations are going forward. But the judgment that results from this kind of suit is just like a regular judgment: as enforceable as the kind of judgment that says "pay that guy $100 million in damages."

Normally when a plaintiff seeks a declaratory judgment, he couples it with a request for an injunction. In other words, if he wins, he wants the defendant to be enjoined from doing whatever the defendant had erroneously been assuming he was legally entitled to do. One reason for taking this extra step is that an injunction, unlike a declaratory judgment, can be enforced by the court's contempt powers. When the defendant is the government, however, there is a well-established presumption that the government will comply with the law (I know, I know), and that an injunction would be superfluous. These government officials, who don't seem entirely to grasp the concept that the government must obey the law, just got a warning shot across their bows:

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.

What's more, the government's lawyers were sailing pretty close to the wind in arguing 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.” They cited a case that used words to that effect, but (as they knew perfectly well) the case was based on a federal statute that was repealed in the 1970s, which used to provide that decisions emanating out of federal districts containing only one judge were not effective to enjoin an Act of Congress. Under current law, any federal judge can enjoin an Act of Congress, no matter how dinky his district is. If the litigants don't like the result, they can get a stay pending appeal. If they can't be bothered to seek a stay, the Act of Congress is frozen unless and until they win at the circuit level or the Supreme Court.

The rub for the government here is that they put all their eggs in one basket. The individual mandate is a linchpin of the law because we all know that the law will go from ruinously expensive to frankly impossible if individuals can't be forced to buy the kind of insurance that their betters have decided they need. (I remain in a bad mood about this aspect because my affordable high-deductible catastrophic coverage is almost certainly going to be ruled unacceptable.) Congress originally included "severability" language in the bill, which would have permitted the rest of the law to be implemented even if, as they openly feared, some judge struck down the individual mandate. The Congressional leaders then made the deliberate decision to excise the severability clause, precisely because they were worried that the law wouldn't work without the mandate.

As a result, when Judge Vinson struck down the mandate, he had no choice but to strike down the whole law with it. He didn't surprise the government with this approach, either; there was considerable discussion of it during the trial, and the government lawyers confirmed that a ruling against the mandate would kill the whole bill; indeed, that was one reason they gave for why he shouldn't strike down the mandate. And now that Congress has changed with the most recent elections, there's not much chance of passing a new ObamaCare that eliminates the mandate, even if anyone thought they'd figured out a way to make that work at last.

The upshot is that Judge Vinson construed the "motion to clarify" as the "motion for stay" the government would have filed if it had employed competent and honest lawyers. He stayed the effect of his order for seven days, to give the government a chance to seek an expedited appeal to the 11th Circuit or, preferably, directly to the Supreme Court. If he's satisfied with what they achieve in the next seven days, he appears to be prepared to extend the stay until the appeal is exhausted -- or of course one of the higher courts may do that on its own. All in all, Judge Vinson seems to have mastered considerable irritation and done what he really believed was in the public interest. I'm still hoping for a few contempt penalties, though.