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Are Two Constitutional Crises on the Way?

I don't know how we avoid them if the administration does not change its approach to court rulings on both ObamaCare and Gulf oil drilling.

by
Dan Miller

Bio

February 9, 2011 - 12:00 am
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On January 31, Judge Vinson of the United States District Court for the Northern District of Florida, Pensacola Division, held the mandatory insurance provisions of ObamaCare unconstitutional as beyond the power of the federal government under the Commerce Clause of the Constitution. Finding that key part of the law inseparable from the rest, he held the whole thing void. He declined to grant an injunction to bar its continued enforcement since:

There is no reason to conclude that … [the] presumption [that the federal government will not ignore a federal court decision and proceed as though it had not been issued] should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

The federal government has not yet sought a stay, and the plaintiffs in the Florida case have not yet renewed their request for injunctive relief. Either or both of those things may well happen soon. In the meantime, Attorney General J.B. Van Hollen of Wisconsin has stated:

Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction. This means that, for Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court. Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law. What that means in a practical sense is a discussion I’ll have in confidence with Governor Walker, as the State’s counsel.

Others have or will likely take a similar position, and senators from Wyoming and South Carolina have introduced bills in the Senate to permit states to opt out.

The Florida decision presents some problems beyond the failure thus far of the Obama administration to comply with it. Ordinarily, the ruling of a federal district court judge is effective only within the geographic limits of his district; the ruling of a court of appeals is ordinarily effective only within the geographic limits of the judicial circuit, and only the Supreme Court is generally empowered to issue rulings binding throughout the United States. This case, however, may well be different since twenty-six states — Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming — joined as parties plaintiff. All but Florida are outside the geographical limits of Judge Vinson’s court.

Were I representing Wisconsin in this matter, I would probably take the positions (1) that Judge Vinson’s January 31st decision is binding on all of the parties plaintiff, including Wisconsin, as well as on the defendant Department of Health and Human Services; (2) that the twenty-six states are no less obliged to comply with the decision than they would have been obliged to comply with a different decision (3); that they therefore cannot lawfully expend state or federal funds or utilize other resources to implement Obamacare; and (4) that until stayed or reversed, Judge Vinson’s decision binds the defendant to refrain from implementing any part of ObamaCare in the twenty-six states which were plaintiffs in the action. The law is less than clear and this argument might be in error. However, I have not yet been able to find any case on point. There may be some judicial pronouncements soon.

Senator Durbin of the Senate Judiciary Committee was asked whether the Obama administration should stop implementing ObamaCare. Ignoring Judge Vinson’s stated reason why an injunction was unnecessary, he responded:

Personally, I don’t, because the judge was asked for an injunction, and he didn’t rule that there would be one. So he hasn’t enjoined any conduct or activity. At this point, we have 16 courts that have considered this case. Twelve of them have dismissed the complaint initially, on procedural grounds. Of the four courts that took up the substance of the Affordable Health Care Act, which you call Obamacare, they split. … Two said it was constitutional, two said it was not, and Vinson in Florida, Judge Vinson, Monday had a chance to not only decide whether it was constitutional but to issue an injunction. He didn’t do that.

The Obama administration seems, for the moment at least, to be acting consistently with Senator Durbin’s view of the matter. It also seems to be acting as it did last year in response to an injunction issued by Judge Feldman of the United States District Court for the Eastern District of Louisiana on June 2, 2010, against continued enforcement of a drilling moratorium. He then found its issuance arbitrary and capricious for various reasons. Among other things, the moratorium had relied on a specious “peer-reviewed” study claiming that it had been approved by eight scientists who had not in fact approved it; the language to the effect that the moratorium had been approved by the panel of scientists was revealed in November of 2010 to have been inserted by a White House official. The Interior Department sought a stay from the Fifth Circuit Court of Appeals, which denied it on July 8. The Department nevertheless continued in effect to enforce the moratorium by issuing a new but substantially identical moratorium with the same flaws and effects as the original. The Department had as of February 2 issued no drilling permits.

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