[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.]
