Are Two Constitutional Crises on the Way?

February 9th, 2011

By Dan Miller

I don’t know how we avoid them if the administration does not change its approach to court rulings on both ObamaCare and Gulf oil drilling.

On January 31, Judge Vinson of the United States District Court for the Northern District of Florida, Pensacola Division, held the mandatory insurance provisions of ObamaCare unconstitutional as beyond the power of the federal government under the Commerce Clause of the Constitution. Finding that key part of the law inseparable from the rest, he held the whole thing void. He declined to grant an injunction to bar its continued enforcement since:

There is no reason to conclude that … [the] presumption [that the federal government will not ignore a federal court decision and proceed as though it had not been issued] should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

The federal government has not yet sought a stay, and the plaintiffs in the Florida case have not yet renewed their request for injunctive relief. Either or both of those things may well happen soon. In the meantime, Attorney General J.B. Van Hollen of Wisconsin has stated:

Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction. This means that, for Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court. Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law. What that means in a practical sense is a discussion I’ll have in confidence with Governor Walker, as the State’s counsel.

Others have or will likely take a similar position, and senators from Wyoming and South Carolina have introduced bills in the Senate to permit states to opt out.

The Florida decision presents some problems beyond the failure thus far of the Obama administration to comply with it. Ordinarily, the ruling of a federal district court judge is effective only within the geographic limits of his district; the ruling of a court of appeals is ordinarily effective only within the geographic limits of the judicial circuit, and only the Supreme Court is generally empowered to issue rulings binding throughout the United States. This case, however, may well be different since twenty-six states — Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming — joined as parties plaintiff. All but Florida are outside the geographical limits of Judge Vinson’s court.

Were I representing Wisconsin in this matter, I would probably take the positions (1) that Judge Vinson’s January 31st decision is binding on all of the parties plaintiff, including Wisconsin, as well as on the defendant Department of Health and Human Services; (2) that the twenty-six states are no less obliged to comply with the decision than they would have been obliged to comply with a different decision (3); that they therefore cannot lawfully expend state or federal funds or utilize other resources to implement Obamacare; and (4) that until stayed or reversed, Judge Vinson’s decision binds the defendant to refrain from implementing any part of ObamaCare in the twenty-six states which were plaintiffs in the action. The law is less than clear and this argument might be in error. However, I have not yet been able to find any case on point. There may be some judicial pronouncements soon.

Senator Durbin of the Senate Judiciary Committee was asked whether the Obama administration should stop implementing ObamaCare. Ignoring Judge Vinson’s stated reason why an injunction was unnecessary, he responded:

Personally, I don’t, because the judge was asked for an injunction, and he didn’t rule that there would be one. So he hasn’t enjoined any conduct or activity. At this point, we have 16 courts that have considered this case. Twelve of them have dismissed the complaint initially, on procedural grounds. Of the four courts that took up the substance of the Affordable Health Care Act, which you call Obamacare, they split. … Two said it was constitutional, two said it was not, and Vinson in Florida, Judge Vinson, Monday had a chance to not only decide whether it was constitutional but to issue an injunction. He didn’t do that.

The Obama administration seems, for the moment at least, to be acting consistently with Senator Durbin’s view of the matter. It also seems to be acting as it did last year in response to an injunction issued by Judge Feldman of the United States District Court for the Eastern District of Louisiana on June 2, 2010, against continued enforcement of a drilling moratorium. He then found its issuance arbitrary and capricious for various reasons. Among other things, the moratorium had relied on a specious “peer-reviewed” study claiming that it had been approved by eight scientists who had not in fact approved it; the language to the effect that the moratorium had been approved by the panel of scientists was revealed in November of 2010 to have been inserted by a White House official. The Interior Department sought a stay from the Fifth Circuit Court of Appeals, which denied it on July 8. The Department nevertheless continued in effect to enforce the moratorium by issuing a new but substantially identical moratorium with the same flaws and effects as the original. The Department had as of February 2 issued no drilling permits.

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6 Responses to “Are Two Constitutional Crises on the Way?”



  1. Brian |

    Great essay, Dan.


  2. Tom Carter |

    Judge Vinson’s ruling has created a lot of confusion. Conservatives are saying that since a federal judge has ruled in a case involving 26 states, the government must stop implementing the law. Liberals are saying that it’s no big deal, this is just one judge in one district, and anyway other judges of equal status have ruled in favor of the law. Once again, it appears that law is nothing more than politics.

    I think the Democrats have a point. There are 94 federal judicial districts and 677 federal district judges. How about if, over time, we have 50 district judges saying it’s constitutional and 50 more saying it isn’t, regardless of who the parties are?

    This isn’t going to be resolved until the Supreme Court acts, and I don’t think we should have to wait for a year or two for that to happen. I agree with the AG of VA — the Court should take it now.


  3. Dan Miller |

    Tom,

    I don’t think the Supreme Court will take the case now. Generally, the justices like to have the benefit of lower court analyses and very rarely grant discretionary expedited review; here, expedited review would be discretionary as well as unusual. Lower court analyses are even more useful when there is a split among the circuits, as is likely to be the case here after the lower court appeals have been completed.

    The attorneys for the twenty-six states in the Florida case, and to a lesser extent for Virginia, are probably in a bit of a quandary, and understandably so: can those states legitimately spend either state or federal funds previously granted to them to implement a law held, in a case in which they participated as plaintiffs, to be unconstitutional/void? I think the answer is probably no.

    The twenty-six state plaintiffs should, and well may, seek clarification of this and other points by renewing their requests for an injunction. In view of the federal government’s somewhat obdurate intransigence (cf. Louisiana civil contempt citatiion), it seems likely that an injunction would be granted and that further guidance would be issued by the court.


  4. Tom Carter |

    Seems to me the 26 states certainly need clarification, as does everyone else. But does that properly come from the district court or the circuit court? And then, under normal circumstances, whatever the circuit court says applies only in that circuit. So the same hot-potato problem is going to be there until the Supreme Court deals with it, and this would seem like a pretty good justification for expedited review.

    Judge Vinson, for his part, certainly knew he was stirring up a hornet’s nest when he made this decision. Like he made clear, Congress hasn’t tried to regulate inactivity under the Commerce Clause before, and if they have the power to do that, then they can do anything they want to. However, I think he was being a little too cute when he threw in the reference to the Boston tea party (p. 42), saying:

    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 peopleto buy tea in the first place.

    It’s a valid and logical argument, but with the appearance of a polarized and politicized judiciary that we have today, he seemed to invite Democrats to use that statement as a reason to dismiss his decision as being political.

    Given the magnitude of his decision, I think Vinson should have gone all-in and granted the request for an injunction. He didn’t because, as he wrote (p. 75),

    …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.

    As we’ve seen, there is every reason to conclude that injunctive relief was necessary because, as it appears now, the federal government is giving the decision a big, fat raspberry and moving on with implementation of the law.


  5. Dan Miller |

    Tom, I think that Judge Vinson’s decision applies to the parties to the case regardless of where they may be and that it would be less than prudent for any of the plaintiff-states to proceed with any aspect of ObamaCare implementation. However, it probably applies to non-parties (insurance companies, for example) only within his rather small district. The possibilities for cans of worms spilling all over the place are numerous.

    In retrospect, he should have issued an injunction rather than rely on the good faith of the federal government; the plaintiffs will probably renew their request for one.


  6. Brian |

    The prudent action here would be to go with the more conservative (as in “restrained,” not political, though the 2 coincide in this case) decision. We’re sneaking up on a coup d’etat here.

    Dan, I’m inclined to judicial conservatism myself, but I’m not sure what more could be fleshed out in more hearings and more appeals. At this point, it is unclear how states should proceed, and even worse, businessmen must wait for a ruling from upon high before they can make certain decisions as well.


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