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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

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.

On February 2, 2011 Judge Feldman held the Department of the Interior in civil contempt for continuing to enforce the moratorium he had enjoined. Judge Feldman observed:

Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance. … Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provide this court with clear and convincing evidence of the government’s contempt.

Judge Feldman ordered the Department of the Interior to reimburse the plaintiffs’ legal fees, in amounts to be determined.

As Michelle Malkin notes in a National Review article:

Remember: Salazar is the data doctor who falsely claimed that the administration’s blanket-moratorium report was endorsed and peer-reviewed by seven scientific experts — when, in fact, eight of the scientists studying the issue for the government explicitly said they “do not agree with the six-month blanket moratorium” on floating drilling.

Remember: The Interior Department inspector general publicized e-mails in November showing that Salazar’s office and former environmental czar Carol Browner’s office collaborated on the false rewrite of the White House offshore-drilling ban report. While the inspector general found no conclusive evidence of wrongdoing and the White House denied any attempt to mislead the public, Feldman pointed out that “at the hearing on the first moratorium, in response to a question by the Court, the government’s answer then was wholly at odds with the story of the misleading text change by a White House official, a story the government does not now dispute.”

Senator Murkowski stated on February 3:

As I stated upon Judge Feldman’s original ruling overturning the moratorium, this is above all a nation of laws. While I was able to understand the administration’s initial reaction in suspending operations, the reality is that the moratorium is essentially still in effect and this directly violates the court’s ruling. There are billions of barrels of oil and millions of jobs — from Alaska to Louisiana — that Americans should be benefiting from. Instead, we’re losing good jobs and paying higher energy prices during a time when Americans are already tightening their budgets.

Today, the Senate Energy Committee is holding a hearing on global oil markets. The turmoil in the Middle East and rising energy prices serve to highlight why the administration cannot continue to slow walk this process, ignoring Congress and the courts. Our national security and national economy are at stake. I applaud the court for holding the Interior Department responsible for ignoring the law.

We may not yet be in a full-blown constitutional crisis, but it may not be far off. The persistent refusal of the executive branch of government to comply with court orders is a serious matter and cannot be countenanced by the courts, by the Congress, or for that matter, by the people. If President Obama, a highly esteemed constitutional scholar and professor of constitutional law (which he is not and has never been), can briefly tear himself from his perch firmly astride the fence as he muddles through the situation in Egypt to have a chat with his attorney general, perhaps there can be a satisfactory solution to this problem. If not, Katie bar the door.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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