Acknowledgment to Simon Lazarus and ACSBlog: http://www.acslaw.org/acsblog/node/18344.
Next, a quick apology to my burgeoning group of blog readers: for the past week, I have been working non-stop on several issues that temporarily detracted from my blog posts. I am hopeful that this delay on new postings is an irregular occurrence.
That being said, please read the following posting by Mr. Lazarus, revealing the significance of DOJ’s recent Motion to Clarify in the federal case challenging the constitutionality of the health care reform law. As regular readers of this blog can tell you, I have been a vocal critic of District Court Judge Vinson’s (N.D. Fla.) ruling that invalidated the entirety of the health care law. Read on ….
In a procedural motion that may prove more significant than its low-key framing may suggest at first glance, the Department of Justice this week filed a “Motion To Clarify” with Judge Roger Vinson of the Northern District of Florida in Pensacola. The Motion asked the judge to “clarify” that his two-and-a-half-week old January 31 declaratory judgment invalidating the “individual mandate” or “individual responsibility provision” of the Affordable Care Act (ACA) “does not relieve the parties of their rights and obligations [under the ACA]” until appeals are exhausted. In this case, that date is unlikely to occur without a definitive Supreme Court ruling, perhaps two years from now.
The motion was filed because Judge Vinson not only held that this provision was unconstitutional, but that his ruling necessitated holding the entire 2,500-plus-page statute invalid. He reached this conclusion despite the fact that he acknowledged that he was unfamiliar with many of the provisions in the law and, indeed, that at least some of them were unrelated to the stricken provision, and, moreover, were affirmatively constitutional. The judge declined to issue an injunction barring the Obama Administration or other parties from taking any further steps to implement the law. But he issued a cryptic reference to a “long-standing presumption” that Executive Branch officials will respect a judge’s determination of the applicable law, and hence, that a “declaratory judgment is the functional equivalent of an injunction.”
In part, no doubt, because of the startling breadth and logical leaps involved in Judge Vinson’s determination – much criticized by commentators as judicial overreach – the decision has appeared to have relatively little impact on the ground. While Republican officials in some states have asserted that the decision relieves them of any obligation to comply with or implement the ACA, in most states, including most of those participating in the constitutional challenge before Judge Vinson, officials are continuing to accept funds and take steps necessary to implement portions of the law that are already effective as well as to prepare for others, such as the establishment of exchanges to offer affordable health insurance policies to individuals not covered by group health plans. For its part, the Administration has emphatically not in any way reined in its broad-scale and intensive game plan for implementing the new law.
The motion avoids frontally confronting or challenging Judge Vinson with the large gaps and deficiencies of his ruling. Instead, it details the myriad and far-flung provisions of the law – many conferring substantial benefits on state governments, private businesses, and individual citizens – that have already taken effect and/or which have little or no connection to the stricken individual responsibility provision. The Motion proceeds to state that, because of the adverse impacts, confusion, and costs threatened by rolling back or halting work on these provisions, the Department concludes that Judge Vinson did not intend his ruling to have any such effect.
Similarly, the Motion points out that, had he intended to impose such massive and costly effects, the Judge would have determined that an injunction was, indeed, in order. But that in such an event, he would, the Department observed, have been required to “apply the familiar four-factor test, which consists of not only the likelihood of success on the merits, but also the respective equities of the parties and where the public interest lies, including an injunction’s effect on parties not before the Court.” Given the vast scope of the ACA, this contention implicitly made clear, a very long and complex proceeding would have been necessary. Since he made no such order and avoided any such inquiry, the Department explained that this too reinforced its conclusion that Judge Vinson “intended” no halt to compliance or implementation, pending the completion of appellate review.
In effect, the Motion, while couched in iterative form and a respectful tone, not only throws the ball back to Judge Vinson, but puts directly on his shoulders the legal and political onus of the fate of the law and all its specific provisions, including its many already-implemented and highly popular provisions, as well as the large and growing investment in them by governments, the private and nonprofits sectors, and individuals. The Motion also in effect offers a compelling preview of what an emergency motion for a stay to the U.S. Court of Appeals for the Eleventh Circuit look like, should the judge give a dismissive response to the Department. In effect, the Department’s Motion to Clarify seems to provide a face-saving route for Judge Vinson to withdraw the threat he seemingly could not bring himself in his January 31 decision either to clearly make or clearly decline to make. To decline the Department’s offer could risk a confrontation with the Obama administration, which, even in the Eleventh Circuit, with its reputation for judicial conservatism, could seem highly problematic. If the judge does, indeed, choose the path of caution and grant the Department’s motion, the Administration will have cleared away much of the objections opponents can mount to proceeding apace with ACA implementation.