[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.]