Health care challengers hold fast
on Feb 24, 2011 at 11:24 am
A group of states and other challengers to the new health care law have urged a federal judge to act promptly to force the government to obey that judge’s decision declaring that no part of the law can be enforced. If the government is not prepared to obey the law, the challengers contended, it should try to get the ruling put on hold — although they argued that the government cannot justify any delay of the decision. This was the challengers’ response, filed Wednesday night, to the Obama Administration’s plea last week to U.S. District Judge Roger Vinson of Pensacola, Fla., to “clarify” his ruling and spell out what parts of the law — if any — would remain in effect during the government’s planned appeal.
In his sweeping decision on Jan. 31, Judge Vinson struck down the new law’s mandate that virtually all Americans obtain health insurance by 2014 or pay a penalty, and then ruled that the remainder of the 2,700-page law cannot function without the mandate, so the entire law was declared unconstitutional.  The Administration did not ask the judge to stay that ruling while it appeals to the Eleventh Circuit Court, but rather said the judge should make clear just what he intended about the practical effect of his ruling.
Denouncing that maneuver as “untimely,” “unorthodox,” and “a transparent attempt” to get a stay without asking for one, the challengers urged Vinson to deny it, and to go further and refuse even to consider a stay request, should the government later make one. “If the Government does not intend to comply with this court’s order, it should seek a stay from the Eleventh Circuit without further delay or further unexcused noncompliance.”  But, if Vinson opts to issue a stay pending appeal, the response added, that should be for only five days to give Justice Department officials a chance to ask the Eleventh Circuit to delay the Vinson ruling.
The challengers’ brief noted that Vinson had turned down their request to issue a formal order to the government not to enforce any part of the law, because he was relying on the government’s good faith to abide by his ruling that the entire law is invalid. The government, the brief said, now is seeking to continue enforcing at least some parts of the law, and is asking Vinson to state in a clarifying order that officials may do so. The challengers said that, if Justice Department officials, in any further filing on the “clarification” issue, indicate they will not obey the Vinson ruling, the judge should issue a binding order requiring them to comply.
It is merely “wishful thinking” on the part of government officials, the challengers argued, that Judge Vinson’s order should not be read as if it would not allow the health care law to continue in force, at least for those parts of it that have already gone into effect. The Vinson ruling, a declaratory judgment that the entire law is invalid, “is final and binding,” the brief asserted, and is fully operative against all parts of the law.  The government’s “contention that the court needs to clarify this basic legal principle throws sand in the court’s eyes…after the court sought to accord respect to a coordinate branch by assuming injunctive relief was unnecessary.”
Quoting the Seventh Circuit Court, the challengers said that “a declaratory judgment is a real judgment, not just a bit of friendly advice.”
The challengers said the Justice Department clarification request was riddled with legal errors, and suggested that that reflected “the government’s desperation to avoid the consequences of the court’s decision.”  The government, it added, appears “to be seeking two bites at the stay apple, by their delayed clarification motion and a separate stay motion to follow….The entire stay issue should be resolved here and now, because time if of the essence in this matter, and because it is obvious that [government officials] cannot meet their heavy burden to justify such extraordinary relief….[The government has] failed to satisfy any of the pertinent factors for a stay.”
As Judge Vinson had done in his initial reaction to the clarification plea, the challengers chastised the Justice Department for waiting two and a half weeks before responding in any way to the Vinson decision. The fact that the government did not file an immediate appeal or seek a stay, the challengers said, undermines any argument that officials might now try to make that government interests will be seriously harmed if the Vinson ruling takes full effect.
What the government is now actually attempting to get, the challengers argued, is a reconsideration of the decision by Judge Vinson.
Under the judge’s scheduling order for the clarification plea, the Justice Department is to reply by Monday to the challengers’ opposition.  The judge has indicated that he will decide promptly.
