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Judge Vinson caves on ObamaCare

By: Mike gamecock DeVine (Diary)  |  March 6th, 2011 at 10:25 AM  | 

RESIZE: AAA

“Clarification” order scolds DOJ to hurry up, then gives license to implement a law he deems unconstitutional

The only hope We the People had of preventing the solidification of socialized medicine pending a definitive ruling on President Barack Obama’s signature hope and change law no less than two years from now by the nation’s highest court, died last week at the hands of the man that had threatened to kill the administration’s assault on private health insurance dead in its tracks.

Federal U.S. District Court Judge Roger Vinson declared the entire health care bill unconstitutional, null and void on January 31, thus presenting the prospect, that before the tentacles of the federal government could wrap themselves around one-sixth of the U.S. economy, it would have to first prove its case to at least five justices of the U.S. Supreme Court.

A month passed in which several of the 26 State plaintiffs in the Florida case declared they would no longer implement the law Judge Vinson declared unconstitutional as Attorney General Eric Holder treated the 78-page order as no more consequential than a New York Times op-ed. Last month, Obama’sDepartment of Justice interrupted their contempt of Vinson’s jurisprudence by adding insult to injury with a motion to “clarify”, rather than take the usual course and ask for a “stay” of the ruling.

Sadly, Judge Vinson rewarded Obama’s contempt by issuing as un-asked for stay that essentially sentences the United States to unconstitutional governance for up to two years:

Judge Vinson filed a 20-page opinion today responding to the motion seeking clarification, and I find it pretty remarkable. I think it’s fair to say that Judge Vinson was not happy with DOJ. First, much of the new opinion is written as a rather defensive summary of his earlier opinion and, at times, a response to critics. Vinson then decided on his own to treat the motion for clarification as a motion for a stay, and then he granted his motion for a stay with an important condition: DOJ must file its appeal in seven days, and DOJ must then request an expedited appeal in the circuit court. This seems pretty unusual to me, given that DOJ wasn’t even seeking a stay from Judge Vinson. The pace of appellate litigation is normally up to the Federal Rules of Appellate Procedure, the litigants, and the Court of Appeals judges — not a district court judge.

Conservatives are supposed to be happy that the good judge harshly scolded Holder’s lawyers and required that they file an “expedited” appeal. Given all the legal maneuverings available in appeals to the 11th Circuit Court of Appeals and ultimately the U.S. Supreme Court, Judge Vinson may have trimmed a few weeks off a process that will likely last for no less than 18 months.

Maybe Judge Vinson knew that the 11th Circuit would have issued a stay, and so was doing what he thought was the best he could do under the circumstances. But it is not his job to help plaintiff lawyers along the appeals process.

His job was to pass judgment on the constitutionality of ObamaCare and prescribe a remedy appropriate to that determination.

Judge Vinson determined that the federal government hasn’t the power to regulate health care by forcing Americans to buy a private insurance policy or be fined. Yet, he decided its OK  for them to implement an unconstitutional law pending appeal.

Judge Vinson let us down.

Mike DeVine

Legal Editor - The Minority Report

Atlanta Law & Politics columnist for Examiner.com

“One man with courage makes a majority.” – Andrew Jackson

More DeVine Gamecock rooster crowings at Modern Conservative, Hillbilly Politics, Unified Patriots,  Political Daily and Conservative Outlooks. All Charlotte Observer and Atlanta Journal-Constitution op-eds archived at Townhall.com.

www.devinelawvista.com


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  • http://silveradvisor.blogspot.com GordonTaylor

    N/T

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    I say, big whoop. Vinson stayed his own order so long as they file the expedited appeal, after which he will have no further control of the case, thus allowing Obama to cement the law for two years.

  • APA Guy

    …as this monstrosity makes its way through the judicial system.

    Either a law is constitutional or it isn’t. That this judge would stay his own ruling without so much as a request from the DOJ is inexcusable.

  • AceInTX

    I know you’re an atty and know more about the courts than I do…but as I understand it, didn’t the judge answer the DOJ’s request for clarification by stating that he ruled the Individual mandate was unconstitutional, that the law did not include a severability clause therefore the entire law is unconstitutional and void?

    Did he not further state that the original intent of his ruling included injunctive relief for the states in the implementation of the law and did he not order them to make their appeal to a higher court within seven days?

    As I understand the ruling…and the way this will work…The DOJ has two choices…either fast track this ruling to the Supreme court or do nothing at which time his ruling becomes the law of the land because his ruling stands without challenge?

    In other words…instead of the DOJ and the Obama Administration being able to just act like they can continue to implement this law while they spend years appealing it…they are now faced with either acting expeditiously in the appeals process and increasing the likelihood of the Supreme Court ruling it unconstitutional as well…or on the other hand allowing his ruling to stand at which point the states can tell the DOJ, HHS and any other federal agency trying to enforce Obamacare’s provision to shove it up their collective posteriors because there would be no way for the administration to enforce the law through the courts since it has been declared void.

    Additionally…he’s forced the higher courts hand…if the DOJ ignores this ruling…and doesn’t file it’s accelerated appeal…the higher courts will be faced in the future…once the DOJ’s appeal reaches them through regular order…The higher courts will be faced with with having to either uphold Vincent’s ruling…or rule that the DOJ and the Obama Administration and any furure Administration would have carte blanche to ignore any federal court’s rulings it damned well pleases?

    As I read this…he’s essentially forced the DOJ to step on the gas and force a higher court’s ruling on an appeal…or force them to comply with his original ruling that Obamacare is null and void and end implementation forthwith..

    From whence do you getting a 20 year stay?

    This seems like a HUGE win from my understanding…

    Am I missing something here?

  • AceInTX

    since they can’t wait two years for a court at which point Obamacare will be implemented and impossible to undo

  • Flagstaff

    Was that uncivil?

    Judge Vinson let us down.

    It?s a logically conflicted set of pronouncements. How can he say that the law is unconstitutional on one hand and yet allow its implementation to continue?

    It?s not even clear that the 11th Circuit would issue a stay of a cease and desist order, if he had issued one. In this case, the harm is being done by the continued implementation, not by its delay. One cannot reasonable argue that there would be irreparable harm to the country if a 2500 page law that we?ve done without for 235 years and that has a ten-year-plus implementation schedule were delayed for a few months. It?s not like we have to do it or the financial systems of the world would melt down.

    As to delay, it is reportedly taking its toll in Wisconsin, too.

  • congressworksforus

    I think this is quite calculated by Vinson.

    I believe that the Judge doesn’t believe the administration will do what he ordered because of the way they ignored the other judge in the drilling moratorium case.

    And if they do file, it forces the issue to move quickly, which is desperately needed.

  • APA Guy

    a repeal even if it passes congress, to what extent would defunding it nullify the law? If it’s allowed to be implemented before the courts sort it out, would congress be required to fund it as a mandatory outlay in the budget or can it be axed as a discretionary item of the budget?

  • APA Guy

    a repeal even if it passes congress, to what extent would defunding it nullify the law? If it’s allowed to be implemented before the courts sort it out, would congress be required to fund it as a mandatory outlay in the budget or can it be axed as a discretionary item of the budget?

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    be decided in two years by 5 lawyers in DC. Obama was always going to have to appeal that ruling and that he required they do it in 7 days, vs the regular rule and that he demands an expedited appeal only cuts off a maximum of 14-21 days in the whole appeals process out of the 18-24 months that it would take anyway. Only the US Sup Ct can really expedite the matter.

    The ONE thing that Vinson had the power to do on anything that really matters was to NOT issue a stay and thus stop Obama from implementing the law pending the 2-yr appeal. On that, he caved.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    is 7-21 days out of 18-24 months. It means nothing. What matters is that he caved on the stay.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    This order granted a stay!!! This allowing Obama to impose the regs on the ins cos that will put them out of business eventually and will cost them dearly for 2 yrs now.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    over after the 7 days. Obama was going to have to appeal within 21 days anyway.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    more later

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    and agree to hear it right away. Don’t hold breath. But whether they do or not never had anything to do with what Vinson could do. Vinson had the power to prevent ObamaCare from being enforced NOW and he wilted.

    I am floored. Do they have pics of him and a ‘ho? The man is a judge for life! He just failed bigtime.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    require no funding. Rather, they force private ins cos to greatly increase their costs to cover “children” of age 26 and cover cancer patients the day after they contract same.

  • http://www.theprecinctproject.wordpress.com ColdWarrior

    “We the people,” in the end, will, or will not, take back our government. It’s clear that Opuppet and his minions will simply ignore the courts as long as “we the people” do nothing about it.

    Let me see if I can provide a short explanation of what is happening. I have just finished reading Judge Vinson’s stay ruling (and had read his original ruling when he issued it).

    First, I advised friends and anyone else who would listen that there was no better Civics lesson on how to apply Art. I, Section 8 to pending legislation than Judge Vinson’s original ruling. I told people to get out their pocket copy of the Constitution, their copy of The Federalist Papers, and Judge Vinson’s ruling and spend a couple of hours enjoying good logic, writing and historical analysis that utterly destroyed all arguments for the constitutionality of the Obamacare.

    It’s been said that the best possible judgeship is that of a federal district judge, as that lone individual can, in some instances, as Judge Vinson has, put a stop to the tyranny of the federal government. However, federal district court judges have no armies. Ordering the executive branch, a co-equal branch that is SUPPOSED TO defer to the court, to do something is one thing. Getting the federal government to actually follow an order is quite another.

    So, what happened? Judge Vinson in no uncertain terms struck down the entirety of Obamacare. He said in his original ruling he didn’t need to issue an injunction, as he pointed out that his order declaring the act void was enough, and that the govt. gave every indication in their briefing that they would comply and treat his ruling as, in effect, an injunction and cease work on implemeting Obamacare.

    They lied. And they ignored him.

    What to do? Well, judges only act when asked to. What did “we the people” do? Nothing. Did the state attorney generals run to Judge Vinson and ask for an injunction when the feds ignored his ruling that Obamacare was now void and a nullity? Nope.

    What has our new Republican-controlled House done? Nothing. Oh, they defunded Obamacare, but there’s already money in the pipeline we have learned that is being spent.

    So, let’s recap.

    “We the people” don’t seem to be too outraged.

    The attorneys general don’t seem to be too outraged (as Judge Vinson noted in his stay ruling).

    “We the people’s” congress does not seem to be too outraged.

    Judge Vinson is a lone judge. With no arsenal. Only his pen. He’s laid out the stakes — either we are going to be a nation with a federal government that has limited, enumerated powers, or we aren’t. He’s explained that he comes down on the side of the former. He’s also explained (see fn. 2 and the accompanying text and also the last few pages of the opinion where he describes what will happen at the Supreme Court) that, perhaps, despite what the Constitution clearly says, the appellate courts and the congress and executive branch will say that its words really don’t mean what they say.

    Again, it all boils down to what “we the people” do about it. And that’s what Judge Vinson is trying to say in his ruling. He’s as much as said, “I made a crystal clear ruling that the entirety of Obamacare is void because it’s unconstitutional and I’ve been ignored and nobody, not “you the people” or your elected congress or your elected state attorneys’ generals seem to care. So, are YOU going to do something about it or not? I’ve done all I could do with my pen and paper. Now the ball is in your court.”

    Then we learn this via Cubachi:

    http://cubachi.com/2011/03/06/bachmann-explains-how-105-billion-is-already-appropriated-to-obamacare/

    As I’ve been trying to explain here for over two years, it really all boils down to whether or not “we the people” are going to get involved in our local Party committees and ensure the election of real constitutional conservatives. We made a little progress in 2010. Will we make more in 2012? We’ll see. It’s really up to each one of you.

    Just writing about it isn’t going to change things at the ballot box.

    If you can get involved in local Party politics, please do.

    Will we lose our country due to a collective shrug by conservative Americans who were too busy, too important, too whatever to get involved? That may be.

    Sad.

    Thank you.

    For Liberty,

    ColdWarrior

  • conservativecurmudgeon

    Ultimately, the law will not stand.

    The Act is thoroughly despised by 55-65% of the public (those who are STRONGLY opposed has been a static plurality of 45-48%), and has remained so since it passed one year ago. It is discredited by the majority of states that have sued the federal government on behalf of throwing the law out.These numbers have not budged, and will not budge, and will get worse as the full calamity of it is exposed in the broad daylight. If nothing else, I think it is entirely possible that, ultimately, some States may go the nullification route, and if they do, the whole thing is sunk.

    This is not an oligarchy, without regard to what Barack Obama or Kathleen Supercilious, or even Judge Vinson says. Eventually, the will of the people will be heard. Sooner would be better, but later is inevitable.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    Some states had announced that they would comply with the oder and thus not comply with a void law. For them to have made a motion for an injunction would have been redundant. The only reason we are having this obtuse conversation about orders and injunctions is that the Obama Admin has broken the protocol called the rule of law and rules more like a Third World dictator.

    Vinson had no legitimate reason to grant the stay given his original ruling and given that to let Obama enforce a law for two years that could be ruled void is to invite the irreparable harm. that stays are meant to prevent! Even if he “knows” that the 11th Cir Ct would have issued a stay, that is no reason for him to congratulate himself on trimming 2 weeks from the process. Too puny.

    But are our so-called conservative republican elected officials much too complacent? Hell yes.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    commiteeman and other positions with small govt conservatives is we have any chance of saving America, not only so that we pick the right candidates, but also so that the John Boehners’ of the world that think We the People need to be better educated on reality before Congress dares be bold on cutting spending, will have the truth shouted in their ears from Cinncinnati grassroots!

    Gamecock salutes a great lawyer, advocate and conservative, Cold Warrior.

  • edwyrd

    here in south carolina.
    karen floyd, SCGOP chairman, has sent out an email, “precinct reorganization meetings”, oddly echoing CWs call to service!

    i will be there. this should be a heck of a lot of fun.

  • conservativecurmudgeon

    But, isn’t it despicable that a nation of 320,000,000 folks depends upon the single vote on of an unelected judge… who may or may not respect the will of the people?

    Dark, dark days….

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • AceInTX

    I’m asking because I don’t know…I was under the impression that it would move much faster than that

  • AceInTX

    and the stay is only for seven days…not 24 months…right?

  • AceInTX

    Can’t the states start the Amendment Process if there are enough…or does it have to start in the Congress?

    I know the can do it with a Constitutional convention…They’d only need seven more states for that…but I’d be very weary of that much power to change the Constitution consolidated in on place in this day and age

  • AceInTX
  • http://908StraightSt.wordpress.com/ mbecker908

    There’s no known cure for it.

  • AceInTX
  • AceInTX
  • AceInTX

    the next time they control Congress

  • AceInTX

    they could withhold funds…but the states could file Suit to get the money since the law has been ruled unconstitutional and the administration is acting unconstitutional by enforcing the very law the courts have said was unconstitutional

  • AceInTX

    therefore an injunction is unnecessary. If his ruling stands…there is no law in existence…meaning there is no need to file an injunction against the Administration since there is no law for the administration to enforce in the first place.

  • AceInTX

    since we have numerous instances of the Administration refusing to carry out the laws of the land in cases like DOMA, the Court ruling on issuing drilling permits, and in ignoring Judge Vinsen’s ruling.

    He’s shredding the last vestiges of the principle that the President is not above the law…and is indeed subject TO the law in all cases

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    be counted on to do anything right.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • edwyrd

    i am no expert, BUT, i believe the president chooses the delegates and sets the agenda. if this is so it would be a big waste of time.

    i know, where is my link…http://www.connorboyack.com/blog/the-dangers-of-a-modern-constitutional-convention

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    their College World Series victory and first ever men’s national championship in any sport!

  • congressworksforus

    The RealID law was shelved after half the states passed legislation nullifying it / refusing to comply / whatever you want to call it.

    This is why the administration is offering the olive branch to the states of 2014 vs 2017. They don’t want a sudden surge in “nullification” legislation…

  • lgbpop

    The Framers made sure there was an end-around to a recalcitrant Congress when it came to the amendment of the Constitution. The first and so far only method has been passage by a ?-majority of both houses of Congress and ratification by ? of the states (presently 38).

    The unused alternative is the States’ nuclear weapon – constitutional convention. Two-thirds of the States petitioning Congress is required, at which point Congress is compelled to call the convention. Resultant amendments (or who knows, possibly a whole new document) shall be presented to the States for ratification, and become law when ratified by ? of the states.

    In either method, Congress has the power to call the method of ratification – either by the states’ legislatures, or by individual constitutional conventions in each state. So far, only repeal of Prohibition was mandated to be passed by convention.

  • lgbpop

    Dunno where that question mark came from; it’s supposed to be ’2/3′.

  • http://westforwestwing2012.com heartlander

    We have a king.

    A president is not allowed to ignore laws passed by Congress, decisions handed down by judges, clear limits imposed by the Constitution, etc. Yet Obama does all these things. Therefore he’s no president. Since the word “dictator” is too terrible to ponder, I’m just calling him king for now.

    When he was a student at Punahou School in Hawaii as a teenager, he evidently had premonitions of his future, for he carved his future name in the sidewalk there…

  • http://westforwestwing2012.com heartlander

    I didn’t do the link correctly, so here’s the info. The picture comes from The Obama File, a site that is officially archived by the Library of Congress (i.e., it’s solid. Library of Congress Reference No.: PT-Crises 92773 D).
    http://www.theobamafile.com/obamaeducation.htm

  • izoneguy
  • powertothepeople

    Now lets hope Spurrier is able to add another title with the football team. If the recruiting class is the sign of the times, we should win one this year.

  • http://www.timelyrenewed.com timelyrenewed

    The problem Judge Vinson and every other judge hearing Obamacare cases faces is the vast expansion of federal power based upon the Supreme Court’s vast expansion of the interstate commerce clause far beyond its original meaning. The only sure way to stop not only Obamacare but the innumerable other ways in which the federal government has expanded beyond the original scope of the Constitution is to reverse those Supreme Court cases (which date back to 1937) and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

  • mspector

    But in all fairness he signaled his lack of resolve when he refused to issue an injunction against implementation of ObamaCare when he ruled on it. Remember, he opined that an injunction was “implicit” in his ruling. Well, no it was not. Now he had the chance to make explicit what he wanted us to think was implicit, and he passed on that opportunity as well. So our President will go forward implementing an unconstitutional law, and there is no plain remedy available to prevent it other than the House continuing to push the issue by voting to defund the program and the states refusing to accept funds to implement it.

    What is left of an orderly society when the courts refuse to do the job for which they are created?

  • mspector

    Vinson’s well-reasoned opinion was impressive but toothless unless he took the steps needed to enforce it. He did not. Had he issued an injunction the entire process would have been fast-tracked, because the DOJ would have had to appeal the injunction and the federal appellate courts would have had to act on it. Perhaps Vinson was only really interested in establishing his reputation as a Constitutional scholar?

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    so much on is real interstate commerce regulation that just goes too far to be wise. But much of it is legal.

  • wrxsti

    . . . as a Physician I’m devastated by the passage of ObamaCare, but I do feel it will be ultimately ruled unconstitutional by the Supreme Court. Vinson was in the right with his first decision. Scary to see that his knees may be buckling a bit now.

  • http://www.timelyrenewed.com timelyrenewed

    The problem with using an Article V convention to initiate federalism amendments is that in 222 years it has never happened. And even if such a convention were ever convened it would be dominated by politicians and law professors, not constitutional conservatives, and would be as likely to move us away from the original constitutional structure as towards it.

    The best solution is an “amendment amendment” which gives the States the ability to initiate constitutional amendments without a convention. Article V only uses a convention mechanism because in 1789 there was no other practical way for States to communicate with each other to formulate amendment proposals. With this revised amendment procedure, grassroots constitutionalists could initiate amendments carefully drafted to achieve the restoration of the original constitutional structure. See http://www.timelyrenewed.com for more specifics on this proposal.

  • http://www.timelyrenewed.com timelyrenewed

    Actually most interstate commerce clause-based federal regulation would be unconstitutional under the original meaning of that clause. Its original purpose was simply to empower Congress to prevent states from passing laws interfering with the sale of goods from other states. Obamacare in its entirety (and not just the Individual mandate) would not have a prayer under that original understanding. See http://www.timelyrenewed.com/?p=221

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    under that clause when one considers the National Road, ports etc. Even most of the framers and founders that had originally opposed the National Road, eventually came around to support it.

    Moreover, if the Sup Ct didn’t allow for more expansive regulation, we would have needed to amend to make it more expansive imho, esp after WWI. We would have needed a commerce clause that would allow for mistakes. Because to not have allowed more regs to make us one country economically, we would have been stunted in growth and in national unity. Not to mention the needs that arose out of Pearl Harbor.

    Yes, it went to far in interpretation with the farmer and SCOTUS was right to strike down the NRA. But we need more than just the prevention of states acting like nations in the transportation and sale of goods across state lines. The Articles of Confederation was replaced largely due to the need to regulate interstate commerce.

    But I acknowledge that you can argue that your narrow definition was the “original” meaning of some of the framers.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    that Judge Vinson used in a legal opinion, it appears his main interest was political vanity. I am very disappointed in the stay.

  • Lords86

    In part because the predicate that this is going to take 2 years to wind its way to the next appellate panel is, in my experience, not accurate. Appeals to the Circuit Courts of Appeals on issues of far less public importance are resolved sooner than 2 years, as well as issues taken by direct appeal to the U.S. Supreme Court. I have experience with both and this notion that Vinson somehow sold the farm on this is curious, at best. Vinson’s decision on all points can’t be viewed in the abstract and without context, in particular the numerous other decisions on this issue/legislation, which will precipitate a quicker appellate resolution.

    In the meantime, it’s up to Congress to de-fund this legislation and neuter it that way.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    in the time it will take to reach the US Sup Court, and that whether its 12, 18 or 24 months, it is bad that ObamaCare will be allowed to grow so long; and that Vinson was the only hope to stop that process, if there was to be any hope. He should not have issued the stay. Yes, the Circuit Court was ultimately going to decide the matter of the propriety of a stay, but Vinson saved them the trouble.

    De-funding is needed but the worst part of the law, ie the ins and other regs that are already in place, are having a devastating effect already to the private health ins industries and in Dr retention.

    There was no reason for Vinson to give up virtually any shot at avoiding a stay for no more than 2-3 weeks out of the 52-104 total weeks of the appellate process.

    Vinson caved.