Patterico's Pontifications

2/18/2011

Obama Administration Tries to Mislead Judge Vinson and Scattered Legal Updates

Filed under: General — Aaron Worthing @ 8:36 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

There has been a lot of activity in a lot of legal issues we have been following.  So here’s a post catching up on a few of them.

Let me start with the misleading part, because this is pretty outrageous.  As you know, Judge Vinson in Florida held that all of Obamacare was unconstitutional, because the mandate was unconstitutional, and it could not be severed from the rest.  If you need to catch up, this search will help you find pretty much all of the posts on this subject.

So the Obama administration’s lawyers have filed a “Motion to Clarify” where they pretend that they are not sure what Judge Vinson meant by his ruling.  You see a few states, such as Florida and Alaska, have decided in light of Vinson’s ruling that Obamacare is a dead letter to them (both states were parties to the decision).  This is the correct reading of the decision.  The judge declared the law to be unconstitutional, and the only reason why an injunction wasn’t granted was because, in Vinson’s words

there is a long-standing presumption .that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction….  There is no reason to conclude that this presumption should not apply here.  Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

(internal quotation marks omitted.)  So things couldn’t be clearer.  He declared that the law was void and expected the administration to treat it as such.  Of course in a moment Judge Feldman is going to give us a reason to doubt that the Obama administration would follow the law, but Vinson is probably wise to wait for them to defy him before putting an injunction into place.

Nonetheless, the adminstration’s lawyers are confused and seek to clarify, or so they say.  But in truth, they seem to be actually intent in getting the judge to grant a de facto stay of his ruling, and to do so they cross the line into dishonesty, writing:

In other declaratory judgment cases, pending appellate review, “the Government has been free to continue to apply [a] statute” following entry of a declaratory judgment.  Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155 (1963); accord, e.g., Carreno v. Johnson, 899 F. Supp. 624, 628 (S.D. Fla. 1995) (“[a]bsent an injunctive sanction, a district court’s declaration that a statute is unconstitutional does not bar the government from continuing to apply the statute pending review by the Court of Appeals and the . . . Supreme Court”).  Mendoza-Martinez contrasted that rule for declaratory relief with the different immediate consequences of an injunction, under which “a single federal judge” could “paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order” prior to appellate review.  372 U.S. at 154.

That entire paragraph is wholly deceptive.  Mendoza-Martinez was a man facing deportation to Mexico, who claimed birthright citizenship in the U.S.  The dispute involved the application of 28 U.S.C. § 2282, which required that three judge panels must be convened in order to grant injunctive relief preventing the application of federal law.  So the question in Mendoza was whether the judge had violated this statute by giving Mendoza-Martinez declaratory relief all by himself, without the three judge panel to back him up.  There are several problems with applying Mendoza to this current situation, not the least of which being that the statute in question was repealed.  Thus the entire reasoning of the opinion relied on the policy underlying a statute that was no longer operative.

Further, the Carreno citation is equally invalid.  Prior to Carreno, a D.C. District Judge held that an extradition statute was unconstitutional in Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995).  In Carreno itself, this time in Florida, another man who was not a party to the Lobue case, claimed that the Lobue court’s  declaration that the law was unconstitutional freed him, too.  The Carreno judge denied this, saying

Judge Lamberth’s August 31, 1995 declaratory judgment does not bar the government from proceeding under the extradition statute in the case of Manrique Carreno. Moreover, the August 31, 1995 ruling only enjoins execution of the surrender warrants for the two plaintiffs in Judge Lamberth’s case. Therefore, the injunction has no direct effect on the extradition proceedings as to Manrique Carreno.

In other words, the Lobue case only meant that the statute could not be applied to the parties in that case, a principle that is pretty much black letter law.  Carreno couldn’t ride their coattails to victory.  Which means that a person in Connecticut, for instance, doesn’t get the benefit of Vinson’s ruling.  But on other hand, every single state in the case can receive the benefits of the decision.  That only makes sense.  For instance, the state of Virginia was not before Judge Vinson.  Instead they chose to sue on their own before Judge Hudson in Virginia.  And while they got the mandate struck down, the remainder of the law was allowed to stand.  So obviously the State of Virginia can’t suddenly pretend it won the whole case because Vinson ruled differently.  And the amazing thing is that later on, the government’s lawyers show that they get this, writing, “[n]on-parties are of course not entitled to the benefits of a judgment against the government[.]”

Of course that creates a problem of patchwork enforcement.  But there is an easy solution if the government doesn’t like it: stop enforcing the law entirely until this is cleared up.

They go on pretending to be confused on when this decision goes into effect.  Really?  You can’t figure out he means, “immediately?”  Seemed pretty obvious to me.

Anyway, the brief as a whole is a thinly disguised motion for a stay or motion for reconsideration of the entire ruling, with a healthy dose of deception for good measure.

Meanwhile, down in New Orleans Judge Feldman has ordered the Obama Administration to begin acting on drilling permits.  You might recall that Feldman ordered the administration to lift their moratorium on drilling months ago and the administration has been flouting the decision ever since, resulting in the administration being held in contempt.  Now he has given them a month to get off their behinds and act, although importantly he didn’t require them to accept the permits.  So the question is whether the administration will start acting honestly, will continue delaying the permits anyway, or deny them all as a giant “screw you” to Feldman.

Anyway, you can read the opinion, here, but my only commentary on it is that it is actually a very standard order of this kind.

I expect to hear the usual defamatory accusations of conflict of interest against Feldman.  Apparently the left believes that if you ever own stock in oil, work for an oil company, etc, you contract a serious case of oil cooties rendering you incapable of dealing logically with the issue.  And knowledge of one of the most important industries in the world is a bad thing.

Finally, in Patrick’s neighborhood, the California Supreme Court has taken up the question of standing in the Proposition 8 case.  This is bluntly not much of a surprise, but Ed Whelan has the rundown, here.

[Posted and authored by Aaron Worthing.]

34 Comments

  1. There are several problems with applying Mendoza to this current situation, not the least of which being that the statute in question was repealed. Thus the entire reasoning of the opinion relied on the policy underlying a statute that was no longer operative.

    The entire reasoning of the Mendoza-Martinez opinion (in 1963) relied on policy underlying a statute that was repealed… in 1976?

    That doesn’t make any difference from a procedural standpoint. We’re talking about the effect of the court’s relief (i.e., a declaratory judgment), not the substantive reason for providing that relief.

    Comment by Kman (d30fc3) — 2/18/2011 @ 9:07 am

  2. Greetings:

    So, is there a point when any of these tactics rise to the level of “high crimes and misdemeanors” ?

    Comment by 11B40 (85ffa5) — 2/18/2011 @ 10:17 am

  3. Meanwhile other countries not America are moving forward to provide jobs and energies and prosperity to their citizens.

    Russia’s Natural Resources Ministry wants to set an Arctic nature reserve’s borders in a way that environmentalists say will subvert existing boundaries to accommodate the oil drilling plans of BP and Rosneft.*

    The future is won by them ones what show up, and Barack Obama’s America is cowering in fear and helplessness.

    Comment by happyfeet (a55ba0) — 2/18/2011 @ 11:01 am

  4. I wonder when the MFM will start covering the Barcky administration giving a finger to the courts. Yeah, I didnt think so.

    Comment by JD (d4bbf1) — 2/18/2011 @ 11:02 am

  5. So, is there a point when any of these tactics rise to the level of “high crimes and misdemeanors” ?

    Sure, as soon as we win another dozen Senate seats.

    In all seriousness, I do agree this is that offensive to justice, and in a fair system, the administration would be forced by congress to stop flouting the law.

    Comment by Dustin (b54cdc) — 2/18/2011 @ 11:10 am

  6. what’s the learning curve here? How long will it take other judges to start writing their decisions in ways what explicitly address Obama’s penchant for flouting the law?

    Comment by happyfeet (a55ba0) — 2/18/2011 @ 11:17 am

  7. The siloviki, aren’t stupid enough to ignore their own interests, like we apparently are,

    Comment by narciso (e694f9) — 2/18/2011 @ 11:17 am

  8. Gee, our current government wants permission to continue engaging in unconstitutional activity? Say it isn’t so!

    Comment by Icy Texan (5d1aa3) — 2/18/2011 @ 11:58 am

  9. Oil cooties–now there’s a picture.

    Comment by Rochf (ae9c58) — 2/18/2011 @ 12:01 pm

  10. Can the judges throw individuals in these bureaucracies in jail for contempt?

    Comment by MD in Philly (3d3f72) — 2/18/2011 @ 12:08 pm

  11. Feldman should order the Sec of Interior to appear and show cause why he should not be jailed for contempt.

    Comment by Kevin M (73dcc9) — 2/18/2011 @ 12:13 pm

  12. happy

    judges tend to start slow on purpose, so that they can say as things go on, “we were very accommodating, but you forced our hands” later. and because usually it doesn’t come to that anyway.

    11b40

    at this point, if i was the speaker of the house i would tell him to obey or face impeachment. he cannot just ignore what a district judge says.

    MD

    i am not sure about the answer to your question. it might be difficult for separation of powers reasons.

    Comment by Aaron Worthing (e7d72e) — 2/18/2011 @ 12:14 pm

  13. But what about the situation where the states to the Florida case are located in the federal district court districts which have upheld the law or only struck down the individual mandate?

    Comment by Jim (ad29d8) — 2/18/2011 @ 1:16 pm

  14. FYI, Arron, you wrote this: “In other words, the Lobue case only meant that the statute could not be applied to the parties in that case, a principle that is pretty much black letter law.”

    But I think you meant to write this: “In other words, the Lobus case only mean that the statute could only be applied to the parties in that case, a principle that is pretty much black letter law.”

    Comment by Jim (ad29d8) — 2/18/2011 @ 1:20 pm

  15. But what about the situation where the states to the Florida case are located in the federal district court districts which have upheld the law or only struck down the individual mandate?

    It doesn’t matter what district they’re in. The constitution is the same. A court has ruled that the law is void, so the government has no right to carry it out. Unless the government takes the attitude that as a coequal branch of government it’s entitled to its own view of the constitution; if Obama wants to go there I would support him every step of the way, but I don’t think he wants to go there.

    Comment by Milhouse (dcde03) — 2/18/2011 @ 1:50 pm

  16. No it doesn’t Milhouse. Federal court decisions are generally binding only on the states within theat court’s jurisdiction.

    Comment by Jim (ad29d8) — 2/18/2011 @ 2:03 pm

  17. Given how other injunction cases have gone lately (I’m thinking the navy sonar testing and the gene-engineered crops cases), where over-broad injunctions were slapped aside by SCOTUS I would think we would all be much better off if this monsterous law did in fact remain binding on all parties until the appeals process has finished.

    And it won’t surprise me that if Vincent chooses not to stay his ruling if the CoA does it for him, as happened with the prop 8 appeal. When even the 9th circuit gets such a matter of procedure right it makes a district court judge look wild to not stay pending final resolution. It’s an unfortunate side effect of the presumption that Congress does not pass unconstitutional laws, that the government gets the benefit of the doubt until the appeals process finishes.

    Honestly, given the the glee expressed here over the prop 8 stay I would have to characterize this post as coming very close to the line of taking whatever position is more in line with momentary passions, consistency, principals and ultimate goals be damned.

    Comment by Soronel Haetir (c12482) — 2/18/2011 @ 2:53 pm

  18. CBO (now that they have some honest budget numbers) now states that repealing Obamacare will SAVE 1.4 trillion dollars over ten years.

    Comment by Have Blue (854a6e) — 2/18/2011 @ 3:09 pm

  19. There is a legal concept called offensive use of collateral estoppel (issue preclusion) or res judicata (controversy preclusion), which allows a non-party to a litigation to benefit from a decision that goes against a party in another lawsuit. Under this concept, Virginia should be able to use the Florida decision against the federal government and legally not comply with PPACA. This might seem unfair to the defendant (it has to will every case brought), but the defendant can have all cases consolidated under in one jurisdiction under “multi district litigation” procedure. The federal government didn’t seek to MDL these cases, so it ought to be subject to nationwide preclusion of enforcing health case law unless and until the Florida decision is overturned.

    Comment by Peter Loti (96e8c1) — 2/18/2011 @ 3:44 pm

  20. Have Blue, that CBO analysis only relates to the repeal of the subsidies and related financial incentives.

    Comment by Jim (ad29d8) — 2/18/2011 @ 4:10 pm

  21. Peter, so should the federal government be able to use the cases that it won against the states in the Florida decision under the same concepts?

    Comment by Jim (ad29d8) — 2/18/2011 @ 4:11 pm

  22. Peter

    I know, but in the case law they said that it doesn’t apply to the government. i mean very specifically they said that.

    Comment by Aaron Worthing (73a7ea) — 2/18/2011 @ 5:00 pm

  23. Soronel Haetir

    So, if I understand it correctly, your position is that I have to support every stay on every side in every matter, if I support it once.

    There is a four part test for when stays are granted. Would you care to address it at all, before you attack my character?

    Comment by Aaron Worthing (73a7ea) — 2/18/2011 @ 5:06 pm

  24. Comment by Aaron Worthing — 2/18/2011 @ 5:06 pm

    Sure,

    The four factors (at least as formulated in the California administration brief opposing the defendant-intervener’s stay application in the prop 8 case) are:

    1) 1) Whether the applicant has made a strong showing of likelihood of success on the merits

    2) Whether the applicant will be irreparably harmed if the ruling goes into effect

    3) 3) Whether issuance of the stay will substantially injure other persons interested in [the?] proceedings

    4) Where the public interest lies

    Much as I dislike the law I do think the government wins on #1, and I would say #2 and 4 also go to the executive. The federal government has a very strong interest in being able to enforce (even if it doesn’t always) constitutional acts of Congress, and it is presumed that acts of Congress are constitutional until proven otherwise.

    #3 is the only one I see as being either neutral or solidly against granting a stay.

    The fourth factor gives the judge enough wiggle room to do pretty much whatever they hell they feel like, but I’m pretty sure in practice that simply means the executive wins until the last gasp appeal is through. If it were private parties the losing side wouldn’t get the benefit of nearly so many doubts, but there’s not a whole lot I can do about that. And since this is in federal courts the state governments aren’t going to get a great deal more respect (as far as irreparable injury and other such factors) than individuals would.

    I care about the process of judicial action (much of which has become lawless) far more than the outcome of judicial action, mostly because a properly acting judiciary is constrained enough that there aren’t many decisions (rulings yes, decisions where there is actually a choice to be made no) to begin with.

    Comment by Soronel Haetir (c12482) — 2/18/2011 @ 6:25 pm

  25. Judge Feldman needs to issue a Bench Warrant for Sec. Salazar’s arrest.

    Comment by AD-RtR/OS! (205eac) — 2/18/2011 @ 9:42 pm

  26. Soronel

    > Much as I dislike the law I do think the government wins on #1

    Um, no. They are actually most likely going to lose.

    > and I would say #2 and 4 also go to the executive.

    How so? Take number 2. How are they irreparably harmed? We have gone 222 years without Obamacare. What is one, maybe two more years?

    > The federal government has a very strong interest in being able to enforce (even if it doesn’t always) constitutional acts of Congress,

    But that assumes it is constitutional.

    > it is presumed that acts of Congress are constitutional until proven otherwise.

    Except in Vinson’s court it was proven otherwise. I mean by your logic the government always wins a stay. Except it is not actually the case.

    > #3 is the only one I see as being either neutral or solidly against granting a stay

    Exactly. The irreparable harm is on the states as they’re budgets are crunched, etc. Doing nothing is cheaper than this boondoggle, whatever the CBO was forced to say.

    > The fourth factor gives the judge enough wiggle room to do pretty much whatever they hell they feel like

    That is mostly true. If the other three factors goes against one side, it becomes a hard argument to cite number 4 for the victory.

    > but I’m pretty sure in practice that simply means the executive wins until the last gasp appeal is through.

    On the contrary, I see stays for the executive denied all the time.

    > I care about the process of judicial action (much of which has become lawless) far more than the outcome of judicial action

    Well, then you should oppose Obamacare. There is no way in hell the founders would have thought this was constitutional. Even Alexander Hamilton wouldn’t imagine that the constitution, as written, would allow for this. It is only because the courts were bullied by Franklin Roosevelt that there are some precedents that make it sound semi-possible. But even then they are going further than any law before. They are violating the made-up right to privacy. They are violating the right to boycott. They are assuming a power that has no limit, making every word of limitation in the commerce clause a waste of time.

    And it would be an act of lawlessness on the part of the courts to uphold it. Just as it was when they upheld Japanese internment.

    But of course if it goes into the realm of politics instead of law, then the S.C. will notice the last election and have no trouble striking this down.

    Comment by Aaron Worthing (73a7ea) — 2/18/2011 @ 11:13 pm

  27. Thanks, Aaron. That explains why no one is discussing this.

    Jim, it only works against the party that litigated a case and then lost. It doesn’t work Against non-parties.

    Comment by Peter Loti (96e8c1) — 2/19/2011 @ 6:42 am

  28. Peter, you’re new here, it seems, so ‘Jim’ is like
    the character he’s named after, on Taxi, he just wants to provoke an argument

    Comment by narciso (e694f9) — 2/19/2011 @ 6:48 am

  29. So, the Big Zero’s administration is telling the judge, “We don’t get it”?

    Sounds to me like they’re being honest — for once.

    Comment by Icy Texan (0428cb) — 2/19/2011 @ 9:59 am

  30. icy

    Obama is alot of things. but he does know law. he gets it. this is a motion to reconsider in disguise.

    Comment by Aaron Worthing (73a7ea) — 2/19/2011 @ 10:41 am

  31. No he doesn’t, AW, he knows Alinsky power relationships, but he doesn’t know law

    Comment by narciso (e694f9) — 2/19/2011 @ 11:20 am

  32. Obama knows legal manuevering, Aaron. Not quite the same thing, in my book, as knowing law; that is, unless “knowing law” includes inventing rights out of whole cloth.

    Comment by Icy Texan (3c774f) — 2/19/2011 @ 12:45 pm

  33. Federal court decisions are generally binding only on the states within theat court’s jurisdiction.

    Where did you get that idea? They’re not binding on anybody except the parties to the case, but they’re binding on those parties no matter what district they’re in.

    Comment by Milhouse (dcde03) — 2/19/2011 @ 7:00 pm

  34. Very interesting comments. Reading all the replies i would assume that only the states participating in the Florida suit would be the benefactors of Vinson’s ruling? I agree that Obama knows legal manipulation but at what cost? If he agitates Vinson to the point of a smack down does this mean Obie has gotten his desired result? Id love to see this held up until the supremes get it…i would think it would be hurried along if Vinson pulls the rabbit out of the hat. My hope anyway.

    Comment by 11B4P (6db76c) — 2/28/2011 @ 9:00 pm

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