Constitutional Law

ObamaCare: Mostly Dead? All Dead? Not Dead Yet?

|

One week after a federal judge in Florida ruled that the whole of the Patient Protection and Affordable Care Act "must be declared void," the legal status of the law is still very much up in the air.

Judge Roger Vinson, who decided the case, declined to issue an injunction, which would have stopped the law in its tracks. But as Reason's Damon Root noted last week, he also included a passage essentially saying that his ruling—a declaratory judgment—should have a similar effect. "Declaratory judgment," he wrote, "is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction…since it must be presumed that federal officers will adhere to the law as declared by the court."

State officials were certainly listening. Officials in several states party to the suit have taken Vinson's ruling to mean that they are no longer obligated to continue with implementation of the PPACA.  Florida's insurance commissioner, Kevin McCarty, has said that his state will forgo a $1 million health care implementation grant. When asked about the state of the law in The Sunshine State, the state's deputy insurance commissioner has declared that "as of right now, it doesn't exist." In Wisconsin, Attorney General J.B. Von Hollen has declared that, for his state, "the federal health care law is dead." State officials in Alaska and Utah have also indicated that they believe the law is no longer binding in their states.

The federal government, however, despite being singled out by Vinson's ruling, is essentially ignoring the judgment. As the Cato Institute's Roger Pilon notes, the Obama administration has shown no sign that it plans to cease implementation, but also no sign that it intends to seek a stay on the ruling, or ask for clarification about what, exactly, it means.

There's legitimate uncertainty surrounding the ruling's practical effects. In part, that's because it conflicts with other rulings. So far, four federal judges have ruled on the law's constitutionality. Two have ruled in the administration's favor. One judge in Virginia ruled that the mandate was unconstitutional, but that the remainder could stand. Vinson not only ruled that the mandate was unconstitutional but that, as a result, the rest of the law should also be thrown out.

Not dead yet!

That makes for what Cato Institute legal scholar Ilya Shapiro says is "kind of a unique situation. The conflict between those rulings adds complication," But he doesn't think the administration can simply ignore the ruling. "They're effectively taking the position that the ruling has no practical effect," he argues. "But that can't be the case, because federal courts do not give advisory opinions."

On a conference call earlier today, Virginia Attorney General Ken Cuccinelli, who led his state in separate suit against the law, agreed. "The statements coming out of the White House and [Health and Human Services Secretary] Sebelius's office don't suggest they have any intention of honoring the judge's ruling." At the same time, "you have AGs and governors saying we're no longer going to implement it." That makes for what he calls an "awkward" situation. "There's not a lot of case law on this, as you might imagine."

According to Shapiro, "at the very least, the ruling binds the parties to the case"—meaning any state involved in the lawsuit is within its rights to opt out of further implementation.

But the situation is more complicated for the federal government. Is the federal government bound to cease implementation only in the 26 states involved in the lawsuit? Is it expected to halt all implementation, everywhere, or perhaps allowed to continue but only in those jurisdictions where judges have ruled in favor of the law? Multiple rulings in multiple districts means multiple potential meanings. "It's hard to disaggregate it geographically," says Shapiro.

The uncertainty, though, may work in the federal government's favor. Shapiro suggests that might be why the government is both ignoring the ruling and not requesting a stay, or any kind of clarification. Doing so, he says, would be to acknowledge the ruling, and perhaps force them to act: "They don't want to give credence to the fact that the ruling has any kind of effect." The administration also potentially benefits from drawing out the uncertainty: "The longer the implementation goes on, the more the administration can argue that the court can't stop this now because it would overturn people's settled expectations."

When asked to speculate about the immediate effect of Vinson's ruling, Virginia AG Cuccinelli would only say that "ultimately it will be decided by the Supreme Court. I would just tell you to stay tuned." For the time being, then, it's likely to remain what Shapiro calls "a really hairy scenario."

"There's not a clear answer," he says. And the Obama administration doesn't seem eager to get one.

Advertisement

NEXT: Hurricane Mary Jane

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. He’s made his ruling; now let him enforce it.

    1. The Judge can’t enforce it unless the parties to the lawsuit (the states) bring it before him that the Obama Administration is ignoring the order. Essentially, if nobody does anything, it all just sits in limbo. It is the responsibility now of the plaintiffs to go back to the Judge and pursue the matter. They should not wait until the Supreme Court takes it. That is foolish.

  2. The uncertainty, though, may work in the federal government’s favor. Shapiro suggests that might be why the government is both ignoring the ruling and not requesting a stay, or any kind of clarification.

    I see the pocket veto now applies to judicial rulings.

    RC Dean is right: this outrage, this blatant disregard for the rule of law is beyond contempt; it is a Constitutional crisis.

    Sebelius should be tarred, feathered and dragged out by her distended jugulars a la A Man Called Horse for her unbelievably flagrant abuse of power.

    1. Who are you telling?

  3. I really only liked this article because it had pictures from two of my favorite all time movies.

    1. I know, right?

      1. I found it marvelous myself.

        1. Hello… my name is Inigo Montoya. You killed my father. Prepare to die.

          1. Hello… my name is Barack Obama. You killed my health bill. Prepare to explain why.

  4. “Chocolate coating makes it go down easier.” Obviously, a racist movie reference.

    1. “Chocolate coating makes it go down easier.” That’s what she America said.

  5. Is the federal government bound to cease implementation only in the 26 states involved in the lawsuit?

    There’s only one Constitution. If its unconstitutional anywhere, its unconstitutional everywhere.

    Is it expected to halt all implementation, everywhere,

    Yes. If a federal judge issues an injunction (or its practical equivalent), that injunction applies everywhere, not just in the judge’s district.

    If a judge were to enjoin, say, BP from engaging in drilling, BP would not be allowed to drill anywhere in the US, not just barred in the judge’s district.

    or perhaps allowed to continue but only in those jurisdictions where judges have ruled in favor of the law?

    If there’s only one Constitution everywhere, how to reconcile conflicting rulings?

    Its not that hard. The judges who upheld the law issued nothing that requires the federal government to implement the law. They essentially told the plaintiffs to go away, and that’s about it.

    So, you’ve got one opinion telling the federal government to knock it off, and another opinion telling the plaintiff in a different case to go away. How to reconcile those? Umm, perhaps the plaintiff who lost should go away (or appeal), and the federal government should knock it off (or appeal).

    1. There’s only one Constitution. If its unconstitutional anywhere, its unconstitutional everywhere

      Not actually true. Courts rule on constitutional stuff regularly. If a judge finds some part of a law unconstitutional, it doesn’t mean the government immediately stops doing it. For instance, the conduct at issue in Citizens United didn’t stop when the lower court ruled, only the after the SCOTUS ruling.

      If a judge were to enjoin, say, BP from engaging in drilling, BP would not be allowed to drill anywhere in the US, not just barred in the judge’s district.

      District judges aren’t bound by rulings outside their jurisdiction. There are plenty of cases where the rulings of the 4th Cir. differs from those of the 3rd Cir., and where judges within those circuits disagree.

      1. Not actually true.

        Actually, true. In Citizens United, the FEC won the ruling until the SCOTUS. If they had lost (as the feds did here) they would have had to get a stay to continue.

        In any event, it doesn’t matter who the parties are. See Full Faith and Credit Clause, Article IV Section 1.

  6. smells like Iocane powder.

  7. Oh and Suderman, a more apt movie still would have been that scene from The Serpent and the Rainbow as a foil to Mr. and Mrs. Miracle Max.

    1. “Don’t bury me! I’m not dead!”

  8. The uncertainty, though, may work in the federal government’s favor.

    The uncertainty behind the law’s actual contents worked in Obama’s favor during passage, but not so much since.

  9. Imagine, instead, if in the year 2005 Bush and Congress had signed into law a privatization of Social Security which allowed people to opt out of the New Deal-era program in favor of defined contribution investments. Now imagine that, after a few months, a federal judge ruled the new law unconstitutional in its entirety. But George W. Bush paid no heed, and continued implementing his federal individual retirement account program.

    My question: would the NYT be calling for W’s resignation or his impeachment once the Dems took over Congress in 2006?

    1. no draco. lil w wouldve had a staff lawyer issue a convoluted legal opinion that provided cover to hide behind…except in the UK & switzerland.

      1. I am pissing in your mouth! Ahhhhhhhh!!!

      2. you continue to be an idiot

  10. The Obama administration has already been found in contempt in Louisiana for reinstating an illegal drilling moratorium. When do the bench warrants and impeachment hearings start?

    1. Unforutnatley, contempt is neither a high crime or a misdemeanor. It is just a flagrant violation of his oath to uphold and defend the constitution of the United States. That being said, I would love to see a bench warrant for Big O’s arrest next time he tries going down to Louisiana or Florida. That would be one fun constitutional crisis!

      1. DC extradites to Louisiana and Florida.

  11. “How many divisions does Judge Vinson have?”

    ? Josef Stalin

  12. Ron Paul just said “it is time to cut all foreign aid” on Fox-well!

  13. In Wisonconsin, Attorney General J.B. Von Hollen has declared that, for his state, “the federal health care law is dead.”

    Speaking of Wisonconsin, did you see Greneen Bay win the big game yesterday?

    1. I wis, you wis, we all wis on consin.

  14. At this point, the next move is probably the State AGs’. They need to file a motion in Vinson’s court seeking enforcement of the order.

    Theoretically, I suppose, the judge could do something sua sponte, but judges really don’t like to do that. Time for the AGs to man up – c’mon, you guys all want to be governor, right? Prove you’ve got the stones for it, already. Ask the judge to hold Sebelius in contempt!

    1. For all the ill its done Salazar as Sec. of the Interior. One of ’em needs to be seized by Federal Marshals and held in contempt pour les encouragment.

      1. Oh yes, that little disregarding the drilling moratorium ruling. Equally pernicious. Physical excoriation of his smug countenance is too little for him.

    2. Ask the judge to hold Sebelius in contempt!

      The odds of that happening, forget actually holding the cadaverous Sebelius in contempt, are somewhere in the ballpark of Christina Aguilera ceasing to implement the singing style of using 57 reverberations in a whole note when one will suffice.

      It is the American Idolization come home to roost, in more ways than one.

      1. >>”Christina Aguilera ceasing to implement the singing style of using 57 reverberations in a whole note”

        Nevah happen, sir. Negro Yodeling is simply de rigueur these days.

        1. Indeed it is. Hmmm, whatever happened to such acts as 3rd Bass, Snow, Rockapella, and Color Me Badd?

    3. The more usual way for an AG to become governor is to ingratiate himself with the soccer moms by locking away casual drug users, trying juveniles as adults in bizarre murder cases, and railroading unsavory people into confessing to crimes they never committed. Highly effective strategy. And it has the advantage of not making the POTUS mad at you.

    4. This is what I’m waiting for. If none of the parties goes back before the Judge, then the ruling just sits out there. I’m getting angrier by the day about it. Let’s start kicking some tail, AGs!!!!

  15. I think they will be granted a writ of certiorari and the case will be heard by SCOTUS but if the petition is denied, Obamacare will prevail.

    I wrote earlier today about wondering why compelling individuals to purchase insurance was not separated out of the hc bill by the democrats. Incompetence, or an insurance ploy as cynical suggested?

  16. I think they will be granted a writ of certiorari and the case will be heard by SCOTUS but if the petition is denied, Obamacare will prevail.

    How does SCOTUS refusing to hear the appeal of a decision killing ObamaCare mean that ObamaCare will prevail?

    1. IANAA, but it helps if you understand that Rather is an idiot.

      1. ^^THIS^^

      2. Assuming the conclusion of a false premise (read: ObamaCare is constitutional) is common to those of the liberal progessive mindset.

      3. from rctl blog:
        I reviewed New Choice Health for the price range of a brain MRI, and according to the law of supply and demand, brains are in short supply in Arkansas:

        National Minimum Price $1,650 (Andrews, TX)
        National Average Price $2,550
        National Maximum Price $7,300 (Ketchikan, AK)

        Are price controls the solution to this inequitable range? A $5,650 price difference between Texas and Arkansas is illogical, and a classic example why the measures are popular. The classic rhetorical diversion tactic that controlling prices will negatively impact services through overuse AKA the waiting lines argument/rationing meme does not reflect the statistical reality of the requirement for a brain scan procedure. Ergo, establishing a price setting for this service would not negatively effect the consumer.

        idiot thinks AK is arkansas. beware her retard strength!

        1. X, thanks for reading my blog, and editing; should I give you a password for editorial control?

          1. sure. I’ll clean it up. just post the login & password here idiot.

          2. OK, here is the password:

            XISANASSHOLEWHOHIDESBEHINDONEINITIALBECAUSEHEISAPUSSYWITHADICKASLILLIPUTIANASISVOCABULARY

            1. Clever, you loser So self absorbed. I know you’ll be back to look for this comment later. And I’m laughing at you.

            2. Postal abbreviations…how do they work?

    2. Because it is a waiting game-that’s why Obama will fight to prevent a rule 11 request. The mandates will be implemented by 2014 and Cuccinelli is asking for the case to be expedited because of the expense for businesses to implement the new rules, and the fact that once new procedures are established the opinion is that the courts will not further punish by changing the rules of the game.

      http://rctlfy.wordpress.com/20…..ut-rule-1/

  17. If a judge finds some part of a law unconstitutional, it doesn’t mean the government immediately stops doing it. For instance, the conduct at issue in Citizens United didn’t stop when the lower court ruled, only the after the SCOTUS ruling.

    Was the ruling stayed pending appeal? They often are. Vinson’s will be, too, I imagine, if the Solicitor General ever gets his (her?) head out of her ass and files the motion.

    But for now, there is an unstayed decision barring the federal government from implementing ObamaCare due to its unconstitutionality. In the absence of a contrary ruling from a higher court, that opinion applies to the federal government. Everywhere.

    District judges aren’t bound by rulings outside their jurisdiction.

    No, they’re not. But I’m not talking about whether judges are bound by this ruling. I’m talking about whether the parties are. And if a federal District judge issues an injunction against a party, the party can’t avoid that injunction cannot merely by moving out of his district.

    Unless you seriously want to argue that, for example, if the federal District judge for Manhattan ordered Goldman Sachs to stop trading in CMOs, Goldman would only have to move its CMO trading out of Manhattan, and could continue trading CMOs out of any other office.

    1. Without a stay, the government walks on dangerous ground if it ignores an opinion that strikes the entire law.

      1. “In addition to asking the Court to declare the individual mandate and penalty unconstitutional, we also asked the Court to enjoin the government from further implementation of the health care law and to strike the entire law as unconstitutional. The Court addressed both requests.

        Regarding the injunction, the Court did not grant the injunction, but that should not be viewed as a victory for the federal government. The Court did not grant the injunction because it felt that the declaration of unconstitutionality was sufficient, writing that “the award of declaratory judgment is sufficient to stay the hand of the [federal government] pending appellate review.” This means that the Court does not believe that the federal government will seek to impose the penalty on Virginians unless an appellate court reverses the declaratory judgment at some point in the future.

        Regarding finding the entire law unconstitutional, the Court engaged in what is known as a severance analysis. In doing so, it tried to determine if the unconstitutional individual mandate and penalty could properly be “severed” from the rest of the act.

        Ultimately, because the Court found that there were portions of the law that could operate without the individual mandate and penalty, it did not find the entire law unconstitutional. When the case is heard by a higher court, we will again ask that court to review the severance decision and find that the entire law must be stricken”

        http://www.cuccinelli.com/inde…..redecision

        I know you are both lawyers but I understood this meant that the parties would proceed status quo?

        1. Ultimately, because the Court found that there were portions of the law that could operate without the individual mandate and penalty, it did not find the entire law unconstitutional.

          Cuccinelli would know better than me, I guess, but that’s not my understanding of the decision. I thought Vinson ruled that you couldn’t sever any part of the law, and threw out the whole thing.

          I haven’t read the decision, though.

        2. They’re separate cases.

          Cuccinelli (Virginia’s AG) appears to be talking about Virginia’s case, where the judge did not invalidate the entire act. Vinson’s ruling, where he ruled that the mandate was not severable and therefore the entire act is void, is the big case involving 26 states.

    2. Maybe Barry is trying to get impeached? After all, it didn’t work out so bad for B. Clinton.

  18. OK, here’s what Vinson said about severability:

    In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practicalmatter), it is reasonably evident, as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, andthat Congress did not believe other parts of the Act could (or it would want themto) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusionis reached with full appreciation for the normal rule that reviewing courts shouldordinarily refrain from invalidating more than the unconstitutional part of a statute,but non-severability is required based on the unique facts of this case and the particular aspects of the Act.

    . . . .

    Because the individual mandate is unconstitutional and not severable, theentire Act must be declared void.

    So, no severability. Cuccinelli is wrong. What the court clearly says is that the entire statute is stricken down, even though parts of it could pass Constitutional muster on their own.

    1. “Cuccinelli is wrong”
      Interesting to call the AG who brought the case wrong but I am curious about your opinion on the delay tactics of the defense

      – “Unfortunately, the Justice Department appears to wish to delay that resolution for as long as possible. On the same day The Post published the Holder and Sebelius op-ed, Assistant Attorney General Tony West faxed me a letter conveying the Justice Department’s decision not to join Virginia in seeking to fast-track this case by skipping the appeals court and taking it directly to the Supreme Court.”

      Is there an advantage to the delay as I have understood?

      1. I’m not sure… typically an unnecessary and active delay in one side wanting to make their argument is a belief that the weight of their argument will grow over time or the strength of their opponents will weaken.

        I don’t see that as a possibility in this case… while there is ample evidence that SCOTUS has changed decisions over time due solely to public pressure, that’s a very long term out look and Obama and Co can’t delay for a couple generations…

        More personally? Because they are ashamed of their idiotic arguments that birth in the US now means automatic debt to the state.

        Or more cynically – so they have more judicial nominees?

        More likely… perhaps… that delaying pushes a SCOTUS review out past the next election.

        Regardless of the actual reason, the fact they are actively doing this means two things: they think time is helpful to them and they are not extremely confident in their ability to win.

      2. See my reply above. Cuccinelli isn’t wrong, he’s talking about Virginia’s case, which is separate.

        I may be a bit cynical, but I wouldn’t be surprised if they just want to stretch it past the next election.

Please to post comments

Comments are closed.