Patterico's Pontifications

3/3/2011

Breaking: Judge Vinson Stays His Obamacare Ruling (Update: Analysis Added)

Filed under: General — Aaron Worthing @ 11:18 am



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

Update: Hot Air’s Ed Morrissey has the best quip: “The White House asked for a clarification.  They got a trip to the woodshed instead.”

I’ll write up an analysis shortly but he has given the Obama administration seven days to file an appeal of his ruling on Obamacare.  You can read it for yourself, here.

Update: And as promised, here is the analysis.

First, as a matter of pure opinion, the entire Order issued today seems to be dripping with irritation toward the Obama administration.  Of course their motion to “clarify” was granted and that only made sense, the judge writing:

While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import. Accordingly, I will attempt to synopsize the 78-page order and clarify its intended effect. To that extent, the defendants’ motion to clarify is GRANTED.

And I believe, reading the whole thing, that the judge was at a loss to understand what they were having trouble understanding, to the point that he doubted the sincerity of the request.  But nonetheless, he did provide a pretty decent “cliff’s notes” version of his earlier decision, although I thought the original was clear enough.

And going to the sincerity issue, he acknowledges the claim by the plaintiffs that this was a motion for stay in disguise.  Then he says, without opining if the plaintiffs were right, that the defendants said in their motion that they planned to file for a stay, so he will treat this motion as a motion for stay on its own, and then proceeded to consider the issue.

Now it is fair to say that I was wrong previously about the chances of getting a stay.  I mean to say I should have known that the judge was pretty likely to grant one.  This is one of those instances that lawyers experience quite frequently when dealing with the federal bench, where the judge completely outclasses the advocates.  It’s humbling, but it takes out some of the sting when we lawyers notice how common it is.  Consider the factors involved here:

(1) whether the applicants have made a strong showing that they are likely to prevail; (2) whether the applicants will be irreparably injured if a stay is not granted; (3) whether granting the stay will substantially injure the other parties interested in the proceeding; and (4) “where the public interest lies.”

I always thought the first one was a gimmie for the plaintiffs.  But I forgot about a basic reality of the situation.  There is an inherent bias involved in that question.  The district court judge has always ruled against the movant, so the judge already ruled on the merits and would be inclined to think they were wrong.  Which, perversely motivates him to give the losers a chance, because often when you have an obvious bias in favor of one side, you actually act biased in favor of the other side just to show how “unbiased” you are.

Of course that is my gloss on this and that can’t really be proven.  He also mentions that the standard for likely success on appeal is not simply a matter of predicting who is more likely to win.  It’s more like whether there is any realistic chance to win.  And there was that.

I also failed, I admit, to notice one very serious problem with number 3.  The plaintiff states were themselves split on whether to stop implementation of Obamacare.  Most of the states subject to that ruling were still going forward, to hedge their bets.  Others were not.  And of course the judge noted another problematic element of the third factor.  One of the parties to the suit was Michigan.  But another Federal District Court, in Michigan, upheld Obamacare’s mandate, raising a question of which decision should control.

And then on dealing with the public interest, the judge writes this:

Finally, for the last factor, I must consider “where the public interest lies.”  Although the defendants’ pleadings present a reasonably persuasive argument for why the “public interest lies” in having my declaratory judgment and de facto injunction stayed pending appeal, almost every argument that the defendants have advanced speaks much more persuasively to why the case should be immediately appealed and pursued in the most expeditious and accelerated manner allowable.

Judge Vinson goes on for quite a bit arguing that the appellate courts must take it on an expedited basis.  I would go as far as to say he felt this was ready for the Supreme Court.  This passage in particular seemed, in a subtextual way, to speak to that:

It should not be at all difficult or challenging to “fast-track” this case.  The briefing with respect to the general issues involved are mostly already done, as the federal government is currently defending several other similar challenges to the Act that are making their way through the appellate courts. Furthermore, the legal issues specific to this case have already been fully and very competently briefed. With a few additional modifications and edits (to comply with the appellate rules), the parties could probably just change the caption of the case, add colored covers, and be done with their briefing.

He even alludes to the special rule allowing appellants to skip directly to the Supreme Court as follows:

After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. However, the stay will be conditioned upon the defendants filing their anticipated appeal within seven (7) calendar days of this order and seeking an expedited appellate review, either in the Court of Appeals or with the Supreme Court under Rule 11 of that Court.

So it is reasonable to think he is saying, “Come on, Supremes.  Why drag this out?  Let’s get this thing done this summer.”

Personally I very much like the idea of the Supreme Court taking it on now.  Besides the simple fact that otherwise we would be needlessly dragging out the uncertainty involved, consider this.  If it went to the Supreme Court now, they will have this written on the side opposed to Obamacare:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

And they will have had this written in support of Obamacare:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….  However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance.

Just as I think Judge Vinson’s invocation of the Tea Tax controversy is a uniquely persuasive passage, I think Judge Kessler’s “mental activity” line is positively repellent.  Both Judges’ opinions will sway wavering justices into opposing Obamacare, with Vinson bringing people to his side, and Judge Kessler sending potential supporters fleeing from her argument.  If Obamacare is struck down, it might be hard to determine who did more to help this victory along.  Indeed, if Scalia writes the majority opinion, I am not sure who is more likely to be quoted.  Scalia is known to delight in mocking ridiculous arguments.

So in short a victory for the Obama administration, but maybe a pyrrhic one.  If the appellate courts agree to an expedited appeal, Judge Vinson’s and Judge Kessler’s words will be very prominent in the minds of the Supreme Court Justices.  That isn’t a good thing for Obamacare’s supporters.

Update (II): Scott Jacobs in the comments notices something I glossed over: a zing apparently aimed at Judge Kessler.

Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise.

Indeed, in one of the footnotes he makes specific reference to that decision.

[Posted and authored by Aaron Worthing.]

33 Responses to “Breaking: Judge Vinson Stays His Obamacare Ruling (Update: Analysis Added)”

  1. Here’s the core of it, from some friends at the JOM blog, who found it;

    “So to ‘clarify’ my order and judgment: The individual mandate was declared unconstitutional. Because that ‘essential’ provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the ‘practical’ and ‘functional equivalent of an injunction’ with respect to the parties to the litigation. This expectation was based on the ‘longstanding presumption’ that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to ‘clarify.'”

    narciso (bf58f6)

  2. And got rather snippy as well, looks like…

    Bigfoot (8096f2)

  3. Not unexpected in the slightest. These things have their proper forms, this is just following the game. We all know that no ruling by a district court judge on this matter is of any lasting significance.

    Soronel Haetir (c12482)

  4. he’s giving Obumble’s flunkies more rope…
    i can’t wait to see what kind of noose they fashion for themselves.

    redc1c4 (fb8750)

  5. I thought this might happen. The Obama team had to know this would be the response, despite everyone thinking them odd for asking for it.

    Jewels (c7b6c5)

  6. Vinson took them to the woodshed and spanked them. He pretty much called them lying weasels and told them to quit stalling and evading the ruling ASAP and expedite their appeal, or else they’d get that injunction.

    Tully (62151d)

  7. The is like that old Alabama joke …

    1st man: This is so simple that any Alabama grad could understand it.
    2nd man: I went to Alburn
    1st man: .. then I’ll talk a little slower.

    Neo (03e5c2)

  8. Wow. Vinson didn’t pull many punches…

    His bit about “mental activity” on page 15 made me chuckle.

    Scott Jacobs (d027b8)

  9. Troy: What’s wrong with me?
    Dr. Zaius: I think you’re crazy
    Troy: I want a second opinion.
    Dr. Zaius: You’re also lazy.

    Bill Maher (03e5c2)

  10. Scalia is known to delight in mocking ridiculous arguments.

    His multi-page lesson on punctuation and grammar in the Heller decision was f**king priceless.

    Scott Jacobs (d027b8)

  11. Scott

    well, i consider his mocking in the linked case, Lujan v. Defenders of wildlife to be be a better example.

    btw, notice i credit you now in the post for catching that shot at Judge Kessler.

    Aaron Worthing (e7d72e)

  12. I did notice. Thank you. :)

    Scott Jacobs (218307)

  13. So for the non-lawyer here, if the Obama administration doesn’t file an appeal in 7 days, does that mean that there is an automatic injunction against Obamacare and that they will have to stop implementation of Obamacare?

    If Obama administration doesn’t file an appeal and continues to implement Obamacare, what happens?

    Tanny O'Haley (12193c)

  14. If they don’t file an appeal, then there is an injunction in place to prevent them from even continuing with prep work for the law to take effect.

    If they DO file in accordance with his guide-lines, then he will stay his ruling pending appeal.

    Scott Jacobs (218307)

  15. ______________________________________

    the judge was at a loss to understand what they were having trouble understanding

    Why?! He’s dealing with “progressives,” if not ultra-liberals, so anything that is at least somewhat sensible, practical and logical will go right over their heads.

    Mark (411533)

  16. That’s one hell of a “Can ya hear me now?”

    Mitch (890cbf)

  17. Personally I very much like the idea of the Supreme Court taking it on now.

    And suppose one or more of the aging conservative justices suffers a health ailment in the next year or so that requires him to step down. Better to get this decided by the current court than one that has a liberal majority.

    aunursa (a2a019)

  18. Tanny

    Scott is right. its not automatically an injunction, but sounds pretty f’ing likely. The judge was very pissed imho.

    but if there is an appeal, the stay will presumably remain.

    Aaron Worthing (73a7ea)

  19. Vinson may be auditioning for the Supreme Court–let it not be forgotten that the Jefferson Administration “won” Marbury v. Madison, only to have CJ Marshall get judicial review out of the bargain. Obama obtained his stay, but got a humiliating scolding and a stall-shattering ultimatum to go with it. Be careful what you wish for. . .

    MSE (401f55)

  20. Vinson, a former Navy flier, seems to have zoomed in on the target;

    Reversing what is presently in effect (and what will be put into effect in the future) may prove enormously difficult. Indeed, one could argue that was the entire point in front-loading certain of the Act’s provisions in the first place. It could also be argued that the Executive Branch seeks to continue the implementation, in part, for the very reason that the implemented provisions will be hard to undo once they are fully in place.

    narciso (bcb6cc)

  21. I wouldn’t expect it to register with the many toggle-switch intellects here, but “mental decisions” is a redundant term.
    Just ask The Decider of recent history.

    Larry Reilly (0e1b2d)

  22. I wouldn’t expect a JournoLister to be able to make a cogent point. Get help, Larry.

    JD (d56362)

  23. Judge Kessler sending potential supporters fleeing from her argument
    Are you kidding, why would you think that? Obamacare’s supporters don’t really care about the rationale that is used to ratify it, all they care about is that it garners 5 votes in the Supreme Court. And none of the justices is going to change his or her vote to a ‘no’ because of Kessler’s decision.

    The people who like Obamacare don’t see the world (or the Constitution) the way you do, and your comment suggests you keep forgetting that.

    steve (254463)

  24. I think the argument is among those who are kind of soft supporters of such a move

    narciso (bcb6cc)

  25. If you want to amend the Constitution to delegate to the federal government the power to raise revenues to pay for healthcare for certain people, then do so.

    If you want to amend the Constitution to delegate the power to force me to buy a health insurance policy then do so.

    But, what they’re doing right now is flatly illegal, because the United States government don’t have those powers at the present time, and the feds aren’t allowed to exercise powers that haven’t been delegated to them by the Constitution.

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    So says the Constitution.

    Dave Surls (3036b0)

  26. The ObamaCare supporters on the Supreme Court may be starting off in a deeper hole, legally speaking, based solely on a comparison of the various district court opinions to date. Of course, the Supreme Court Justices will research and write their own opinions but the district courts’ factual findings are relevant and the structure/reasoning of the lower courts’ opinions help flesh out the strengths and weaknesses of the legal issues. As a result, I think Vinson’s opinion may be more helpful to the conservatives on the Supreme Court than the other opinions will be to the liberals.

    DRJ (fdd243)

  27. So for the non-lawyer here, if the Obama administration doesn’t file an appeal in 7 days, does that mean that there is an automatic injunction against Obamacare and that they will have to stop implementation of Obamacare?

    There is no automatic injunction as such, but Judge Vinson can award injunctive relief to the plaintiffs and others in whom they have a protectable legal interest.

    Michael Ejercito (64388b)

  28. This was not a victory for the Obama administration.

    Judge Vinson knows exactly what the Obama administration was planning and that was to ignore the decision and just proceed as if nothing happened. They figured if they got a stay, they would just string things out. If there were an injunction the administration would simply ignore it, just as they did in the 5th Circuit injunction on the offshore drilling ban. Just as they did when the FCC simply ignored the 10th Circuit’s decision they had not been granted authority to regulate the internet, and then issued regulations to regulate it. That one is going to land right back in the hand of the 3 judges who decided it in the first place. Talk about 3 pissed judges deciding your case!

    Federal judges are noticing what’s happening. They see he adminstration ignoring injunctions and decisions. Judge Vinson is forcing their hand to ensure a final conclusion, the last thing Obama wants.

    Corky Boyd (d787be)

  29. “Although I strongly believe that expanding the commerce power…”

    This has nothing to do with interstate commerce. When I deal with doctors, it’s inside my state. When I purchased a health insurance policy it was from a company based inside California.

    My interactions with health care providers and insurance companies have NEVER involved any kind of interstate commerce.

    The interstate commerce hogwash is a big fat red herring.

    This has to do with the never-ending attempts of Democrat scum to turn everyone in the United States into their perpetual servants/slaves/serfs via socialism.

    The Dems have always believed that human beings exist to be made into involuntary servants of Democrats via one method or another.

    If it ain’t pure naked slavery in the cotton fields of Alabama, then it’s military conscription on the battlefields of Europe and Asia. If it isn’t conscription, then it’s gigantic tax rates which effectively make everyone into serfs of governments controlled by Democrat slaveowners.

    But, whatever method they’re currently employing, it’s always been about making us into their slaves (or involuntary servants if you want to use the polite term). It was that way in the days of John Calhoun, and it was that way in the days of FDR, and it’s still that way in the days of the Great Black Dope currently in the White House.

    They’ve been pushing for full-on federal government controlled healthcare ever since Truman was president, because once a federally controlled medical system is in place, it will make us totally dependent on them for our medical needs, and that’s one big step towards making us into their obedient little serfs forever.

    Once they control all medical care, then you’ll have to kiss their ass to get medical treatment, or you’ll do without, and that’s only if you’re lucky. If you’re unlucky, like those black folks in the Tuskegee Syphilis “Experiment”, then you’ll be denied medical care, no matter how much bowing and scraping you do, just because the dickhead Democrats don’t feel like providing you with treatment, because giving you treatment doesn’t happen to fit in with their agenda du jour.

    Anyone that willingly hands over control of their medical care to a government is a fucking moron. Anyone who willingly hands over control of their healthcare to a government controlled by Democrats is so stupid, it’s amazing that such a person can so much as breathe without outside assistance.

    Dave Surls (a9fabe)

  30. Aaron, I’ve seen a few federal district court decisions in which the trial judge said something to the effect of “I recognize this is a close case” or “the case hinges on a question of law for which there is no binding prior precedent.” And in those cases, they’ve sometimes also said — in connection with stay applications — something to the effect of “I think my ruling is the right one, but I recognize that it’s a preliminary one made without a full trial, and since it’s a close question or without binding prior precedent, I’m going to give less weight to the plaintiffs’ probability of success element than I otherwise might.”

    At a bare minimum, district judges often soften their language on this point out of a quite proper judicial modesty. They certainly don’t want to stray into speculation about the specifics of what an appellate court ought to, or might, do.

    If one’s arguing against a stay, one certainly can’t take the “probability of success” element for granted.

    Beldar (d162eb)

  31. Hrmpf. My bad, I was thinking this was a preliminary injunction ruling, not a summary judgment. Never mind about it being “preliminary” — this ain’t that, at least.

    Beldar (d162eb)

  32. Steve

    with respect, i am not talking there about the people who were convinced, but the people who were not yet convinced. if are unsure, judge kessler’s opinion will not persuade you, except in the sense that you might be persuaded that she is nuts.

    And i will go as far as to say that even true believers will admit that this language is unfortunate.

    Aaron Worthing (e7d72e)

  33. Unfortunately, our purported leaders are hung on the procedural battle, and ignoring the limits of our current governance model.

    We have a tendency in America to argue for or against a concept based on our own personal philosophy or view of the world, what advances our personal interests, or the interests of our party, family, organization, or region. Perhaps viewing the issue from a management or systemic perspective might result in innovative approaches to the issue. The American national mindset, citizen philosophy, lack of citizen motivation to be proactively healthy, and governance model make the socialization of health care in America very problematic, particularly at this point in time. A country needs to know its limitations.

    Reggie Greene / The Logistician (015eec)


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