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Commentary By Avik Roy

Vinson to White House: Stop Stalling

When he declared Obamacare unconsitutional, it wasn’t just “friendly advice.”

If you’ve been following the news regarding the constitutional challenges to Obamacare, you’ll know that the biggest case of all is Florida v. HHS, in which Judge Roger Vinson of the U.S. District Court for the Northern District of Florida voided the entirety of the new health law. The White House responded that it would ignore the ruling and continue to implement the law while appealing Judge Vinson’s decision.

That ruling came down on Jan. 31, 2011. More than four weeks later, there has been no appeal.

Instead, the Department of Justice belatedly filed a “motion to clarify” Judge Vinson’s ruling: When he said Obamacare was void, what exactly did he mean? It was a highly irregular approach. Vinson’s ruling was pretty straightforward; usually in a case like this, the losing side moves right away to appeal the decision. Cynical types wondered if the Obama administration was dragging its feet in order to lock in as much of the law’s infrastructure as possible, making it ultimately harder to reverse.

On Thursday, Judge Vinson issued his ruling on the “motion to clarify,” and it’s a doozy. The press is reporting that Judge Vinson stayed his original ruling overturning the law, allowing implementation of Obamacare to continue. That’s true — but it’s only a fraction of the story.

Vinson granted a stay on the condition that the White House file an expedited appeal with either the Court of Appeals or the Supreme Court by next Thursday, March 10. In other words, Vinson is allowing the administration to continue implementing the law in the near term in exchange for accelerating the final resolution of the case by the appeals court and eventually the Supreme Court.

Vinson’s new ruling can justly be described as a smack-down of the administration. Quoting an appellate ruling, he notes, “A declaratory judgment is a real judgment, not just a bit of friendly advice.” He sardonically recounts the administration’s stalling tactics, and describes their active “misrepresentation” of judicial procedure. Here’s Vinson’s response to the government’s motion (emphases added):

“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.””

The White House lamely tried to cite some case law in order to argue that the government was entitled to ignore Vinson’s ruling until the case had wound its way up the appeals-court ladder. But that’s not how the judicial system works. As Vinson writes, “The defendants’ selective quoting from those cases — to suggest that the federal government may simply ignore a declaratory judgment by a district court until the appeals process has fully run its course — borders on misrepresentation.”

In its “motion to clarify,” the White House claimed that delay was needed because Vinson’s ruling “required careful analysis” before the government could evaluate its “potential impact” on implementation of Obamacare. Vinson notes (citing this article from the Washington Post) that “this seems contrary to media reports that the White House declared within hours after entry of my order that ’implementation will proceed apace’ regardless of the ruling.”

For those who didn’t wade through Vinson’s earlier, 78-page ruling striking down PPACA, he helpfully summarizes that order in his new decision, adding in some relevant news from the last several weeks. For instance, he notes that even the judges that have upheld Obamacare have admitted that the individual mandate is an unprecedented expansion of federal power, and that one of those judges found that Congress could actually regulate “mental activity”:

“Even the district courts that have upheld the individual mandate seem to agree that “activity” is indeed required before Congress can exercise its authority under the Commerce Clause. They have simply determined that an individual’s decision not to buy health insurance qualifies as activity. For example, in the most recent case, Mead v. Holder . . . the District Court for the District of Columbia concluded that “[m]aking a choice is an affirmative action, whether one decides to do something or not do something,” and, therefore, Congress can regulate “mental activity” under the commerce power. . . . As that court acknowledged, however, there is “little judicial guidance” from the Supreme Court with respect to this issue as “previous Commerce Clause cases have all involved physical activity.””

He also points out that while some have laughed at the absurdity of the idea that upholding Obamacare would allow Congress to force Americans to buy broccoli, prominent constitutional scholars have testified in recent weeks that Congress in fact does have that power:

“Although some have suggested that the possibility of Congress being able to claim such a power is Constitutionally implausible, subsequent events have only reinforced the legitimacy of this concern. On February 2, 2011, two days after my order was entered, the Senate Judiciary Committee held a hearing to explore the Constitutionality of the individual mandate. The possibility of a “broccoli mandate” was discussed at this hearing. Former Solicitor General and Harvard law professor Charles Fried testified (during the course of defending the Constitutionality of the individual mandate) that under this view of the commerce power Congress could, indeed, mandate that everyone buy broccoli. . . . As noted, to the extent that one may respond to this hypothetical concern by suggesting that “political accountability” would prevent Congress from ever imposing a “broccoli mandate” (even though it could), the Supreme Court has specifically rejected that as the appropriate test for “the limitation of congressional authority is not solely a matter of legislative grace.””

Judge Vinson acknowledges that other judges have upheld the law, and that none of us know how Obamacare will fare at the Supreme Court. But this much we do know: The stakes in this case are as high as any in the last 35 years. Will we have a federal government with unlimited powers, including the authority to regulate “mental activity”? Or will the Supreme Court find that the Constitution still contains one or two constraints on federal power?

This piece originally appeared in National Review Online

This piece originally appeared in National Review Online