A "National Declaratory Judgment" in the ACA Suit?

What is the scope of the remedy in Texas v. United States?

|The Volokh Conspiracy |

For some reason, everybody is talking about severability. (Which means it is a good day, like every day, to read Kevin Walsh.) In addition to all the discussion of the merits and severability in Texas v. United States, something should be said about the remedy. Several propositions:

1. It is good that the court did not issue a national injunction. (Multiple Chancellors.)

2. Don't get too comfortable: the court might well have issued a national injunction, given its other conclusions; it did not rule on all the counts in the complaint (so it might yet issue an injunction); and at any rate, after issuing a declaratory judgment, a court retains the power to issue injunctive relief. (28 U.S.C. § 2202.)

3. What the court issued was a declaratory judgment—a remedy that is the judgment itself, without any further remedy such as damages or an injunction. This remedy can be used to decide whether a patent is valid, or who owns a copyright, or whether an insurance contract requires the insurer to pay. A declaratory judgment is not merely advice from a court, a kind of mild suggestion. It is a binding decision of the court. (The Myth of the Mild Declaratory Judgment.)

4. Even though a declaratory judgment is a binding determination, it is not an order to the parties enforceable by contempt. The injunction, by contrast, being an equitable remedy, is enforceable by contempt. (This difference is explored more in Myth ) But since a declaratory judgment can be the basis for a subsequent injunction, it's not a permanent distinction—it's the difference between contempt in one step or in two. And we presume that the government will comply with judicial judgments.

5. So here's the gist so far: the district court gave a declaratory judgment, which is a binding decision, but not one immediately enforceable by contempt. But what is its scope? Whose rights and legal relations are determined by this declaratory judgment—those of every person in the United States, or only the those of the plaintiffs? The federal district court in Texas didn't say. And the question is enormously important but also understudied.

The answer depends, I think, on background understandings of Article III and the judicial power. If you think (as I do) that the judicial power granted by Article III is fundamentally about resolving the dispute between the parties, then there is an easy answer: the declaratory judgment is a binding determination as between the parties, but it does not control the relationship of the parties to non-parties. (There are of course still doctrines of precedent and preclusion—I am focusing on the effect of the remedy qua remedy.) But for those who don't adopt this understanding of the judicial power, it's a real puzzle. Why isn't a declaratory judgment a "national declaratory judgment," either automatically or at least whenever the issuing district court wants it to be?

Here's some wisdom on this from John Harrison:

Declaratory judgments concerning invalidity may seem like invalidation, but a declaration cannot make a previously valid law invalid, precisely because of its declaratory nature. FN: Declaratory judgments that conform to the federal Declaratory Judgment Act cannot be said to invalidate statutory rules for another reason. The Act provides that a court may declare the rights or other legal relations of parties. 28 U.S.C. § 2201(a) (2012). The legal relations of parties, like the right to performance under a contract, are specific to the parties. The invalidity of a statutory provision is general, and so not the proper subject of a declaratory judgment. It is, however, common for federal courts to declare that statutory provisions are invalid in the abstract. That practice is difficult to reconcile with the statute, but it is widespread.

More broadly, these questions about the effect of a declaratory judgment raise the issue about whether a declaratory judgment action should be thought of as essentially anti-suit. Here is a suggestive passage from the remedies casebook that Emily Sherwin and I are authors of (Ames, Chafee, and Re on Remedies, 2nd edition, pp. 678-679):

Modern procedural rules permit plaintiffs to sue directly for declaratory relief without seeking any further remedy against the defendant, provided there is an actual controversy between the parties. In other words, like an "anti-suit injunction," the declaratory judgment can be seen as an "anti-suit" remedy. The effect of the judgment is to settle the rights of the parties. The judgment constitutes a determination on the merits, and, by issue preclusion, precludes relitigation of the issues actually decided by the court. It also lays the foundation for further actions for damages or injunctive relief, if these remedies become necessary.

6. In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. That still leaves plenty to debate and discuss–including the proper basis of standing for the plaintiffs, and the status of intervenor-defendants for thinking about the effect of a declaratory judgment. But this line of inquiry avoids making fundamental mistakes about the kind of remedy the declaratory judgment is, either the mistake of thinking it is soft, mild, unreal; or the mistake of thinking it is universal and conclusive as to non-parties.


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  1. This judge needs to be impeached?just knock out Trump’s impeachment and this dumbass’ impeachment in the same session to save time.

    1. No, let’s impeach Ginsburg and Kagan first.

      1. If they do anything this stupid then go for it.

        1. It’s a pretty hard case to make that the judge is too far out of bounds. It’s clear by NFIB that the mandate is unconstitutional now that it can’t be construed as a tax.

          The severability issue is much more contentious, but after all Congress said it wasn’t severable when they passed the ACA in 2008.

          Or is it just the outcome that has you so upset?

          1. The ACA didn’t have a mandate that you had to buy insurance. You could not buy insurance, pay the “shared responsibility payment,” or “tax” as CJ Roberts would have it, and still be in compliance with the law. Starting in January 2018 the shared responsibility payment will be zero dollars. So you can not buy insurance, pay the zero dollars, and be in full compliance with the law. Where is the mandate, constitutional or otherwise?

            The outcome doesn’t have me upset. Is the outcome the only reason you think this decision makes sense?

            1. The IRS may have decided that it was diplomatic to call it a “shared responsibility payment”, but the actual statute calls it a penalty.

              See that word “penalty” there? Multiple times?

            2. “Where is the mandate, constitutional or otherwise?”

              In the law: “An applicable individual SHALL for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” (26 U.S. Code ? 5000A)

              No, paying the penalty and getting square with the Man is not the same as having complied with the law.

        2. They’ve gone stupider. Many times.

  2. But the government WANTS to follow the judgment. It’s desperate to follow the judgment.

    So the relevant question isn’t what the government’s bound to do–it’s what the government CAN do. Or, more specifically–does the judgment authorize the government to stop implementing or enforcing the ACA as to everyone, whether or not they were parties? Stated another way, can the government use the district court’s judgment as authority overriding its existing statutory obligations?

  3. The name Kevin Walsh makes me think of a very different website: http://forgotten-ny.com/. Different Kevin Walsh too.

  4. A commenter in one of the other posts on this thought all laws should be inseverable; that if any part is found invalid, the entire law should be invalid, because the legislature voted for the entire law, the President signed the entire law, and for any court to only invalidate some part of it is true legislating from the bench.

    I am on that wagon too. We are told over and over that legislation is the art of the compromise, that this is how democracies work, that negotiating bills is like making sausage: do not look if you are easily offended.

    Even if the law is some law with all sorts of parts which might seem independent — traffic laws, environmental laws, tariffs — they are the result of massive negotiating sessions, full of compromises and trade-offs. Whose to say some legislator would only vote for protecting the lesser northern sage grouse if the greater eastern honey bear was also included? For some judge to rule that the lesser northern sage grouse is only a sub-species and therefore not eligible for inclusion is to invalidate that legislator’s vote.

    Every bill is a work in progress, frozen into a single indivisible law once passed and signed.

  5. This issue came up in Wisconsin with Act 10, the law from 2011 that stripped most collective bargaining privileges from public-sector workers. A judge in Dane County (where Wisconsin’s capital is, and extremely progressive) issued a DJ declaring Act 10 unconstitutional. Other municipal governments tried to ignore Act 10’s requirements and bargain collectively as if it didn’t exist, but the Wisconsin Institute for Law & Liberty was able to successfully sue some of them and stop them from doing so in other county courts, who were not bound by the Dane County judge’s decision.

  6. The claim that “it is a real judgment” depends a lot on what the “it” is. The declaration that the entire ACA is unenforceable does not seem like a real judgment. And the idea that party status is enough to trigger an on/off switch for the entire ACA also seems strange. The problem is not just inseverability doctrine on its own, but also its misfit with the idea of a case or controversy.

    Suppose we just had individual plaintiffs claiming injury from 5000A alone. It wouldn’t make much sense to go to the next step of inseverability after determining it couldn’t be enforced against them. But why that should change just because other plaintiffs are also in the case if those plaintiffs don’t have standing to challenge 5000A (and they don’t)? Some mischief is also being worked, then, by the doctrine that one party with standing is enough to make a case or controversy.

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