U.S. seeks health care clarity (UPDATED FRIDAY)
on Feb 18, 2011 at 8:51 pm
UPDATED Friday p.m. Judge Roger Vinson, saying that “everyone in this country” would gain from a final resolution of the case in which he struck down all of the new federal health care law, on Friday ordered the challengers to the law to file a response by midweek next week to the Obama Administration’s request that he clarify what parts of the law, if any, are still in effect. His order, found here, shortened the normal briefing schedule to keep the case moving. He complained mildly that the Administration had waited more than two weeks to respond to his ruling.  Once the challengers file their expected opposition to the government motion, and the government then replies three business days later, the judge will rule promptly, he promised.
—————–
The Obama Administration, saying it fears “substantial disruption and hardship” if a federal judge does not narrow the impact of his sweeping ruling against all of the new health care law, formally asked on Thursday for clarification on what is to happen while the government appeals his ruling.  First, it asked that the judge pare down the practical impact of the ruling. But, if that option is rejected, it asked the judge to say specifically just what he intended to happen while the government appeal proceeds. The motion and a legal memorandum supporting it are here.
In effect, the Administration was asking Senior U.S. District Judge Roger Vinson of Pensacola, Fla., to embrace the government’s own view of his ruling.  That is, it said, governent officials “do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created” by the law for the 26 states that sued, and others who joined in the lawsuit in Judge Vinson’s court. Federal officials, it said, “are proceeding on that basis,” so they are essentially seeking permission to continue to do so.
The approach the new motion took was different from asking the judge to put his entire ruling on hold while a government appeal proceeds. Had the government’s lawyers asked for a stay, that could have been interpreted as a concession that they were bound not to try to enforce any part of the new law unless the judge’s decision were formally blocked. The filing made it clear that officials, as of now, at least, do not feel so bound.
When Judge Vinson struck down the new law’s mandate that virtually every American obtain health insurance by 2014, a mandate that he said exceeded Congress’s powers, the judge concluded that every part of the law had to fall with that mandate.  His order thus concluded flatly that the entire 2,700-page law was invalid.
Still, the judge refused a request by the challengers to order government officials not to continue enforcing it. He said he would depend on the Executive Branch to abide by his ruling, which was technically a formal declaration that the law as a whole was invalid — in other words, “a declaratory judgment.”
In its new filing, the Administration said Judge Vinson’s ruling was unique, adding that the government was “not aware of any past examples of a court relying on a general presumption that the government would adhere to the legal rulings in a declaratory judgment to conclude that the government would immediately halt implementation of so many statuory provisions with respect to so many plaintiffs, and indirectly affecting so many people, while appellate review is pending.”
The judge’s ruling, as officials are interpreting it, does not “relieve the parties to this case of any obligations or deny them any rights under the Act while appellate review is pending.” If officials are wrong about that, it added, “all parties must know that in determining specifically how to proceed while appellate review is pending.”
If the judge had issued an order commanding obedience now to his ruling striking down all parts of the law, instead of a mere declaration of invalidity, the judge would have had to make such an order quite specific in what was required to obey such an order, the motion argued.
If the judge clarifies that he did not intend his declaration to be the functional equivalent of an injunction against all parts of the law, the Administration filing said, that would also help shape how the case now proceeds on appeal.  That appeared to be a strong hint that, if the judge does not take some step now to limit the real-world impact of his ruling, the government would have to ask for some other formal kind of relief as the appeal unfolds.
The bulk of the 15-page memorandum was devoted to a detailed discussion of the parts of the law that have already taken effect, and the implementation steps that are already being taken under many parts of the new law.
But, in closing, the Administration suggested an alternative to its plea for the judge to embrace the officials’ reading of what he meant.
This is how the alternative  reads: “If the Court disagrees with [government officials’] understanding and instead issues an order stating that it did, in fact, anticipate its judgment to have immediate injunction-like effect, [officials] will consider how to respond pending appellate review, including whether to seek a stay pending appeal. Otherwise, [officials] will proceed based on their understanding of the judgment as reflected above.”
The filing said that Justice Department lawyers had consulted with lawyers for the law’s challengers in Judge Vinson’s court, and noted that they will oppose the motion.
In releasing the government’s motion Thursday evening, Justice Department spokeswoman Tracy Schmaler issued the following statement: “The district court took the extraordinary step of declaring the entire Affordable Care Act invalid in its ruling. The Department of Justice today filed a clarification to confirm that the court did not intend to disrupt the many programs currently in effect, including small business tax credits, the millions of dollars in federal grants awarded to states to help with health care costs, and other ongoing consumer protections while this case is on appeal.
“We believe it is important to put to rest any doubts about the ability of states and other parties to continue to implement these critical programs and consumer protections provided under this statute.
“As we have said, we strongly disagree with the court’s ruling and continue to believe — as other federal courts have found — that this law is constitutional, and we intend to file an appeal in the Eleventh Circuit. There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing the Affordable Care Act and we are confident that we will ultimately prevail on appeal.”
