Almost every report of the striking down of ObamaCare by a Federal Judge states that the Judge allowed preparations for the law to continue pending appeal. This is because, they say, the Judge did not issue an injunction. They say this means preparation can continue.
No it can’t.
I am no lawyer, but this seems plain on its face. From page 75 of the ruling.
(5) Injunction
The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy [Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980) (Burger, J., concurring)]. It is even more so when the party to be enjoined is the federal government, for 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.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added).
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.
The Judge did not issue an injunction because the law is dead. The executive branch has absolutely no right to continue preparations for the law. If they do, they are guilty of something quite serious.
February 1, 2011 at 2:43 pm
If they continue the Judge can find the administration in contempt. Which as many of you know is something very serious.
I fully expect for the Obama administration to ignore the ruling and continue full steam ahead.
February 1, 2011 at 3:06 pm
Replying to Mr. Cattaneo:
If the Obama administration does go forward as you say, this just goes to show that Obama has no regard for the separation of powers and the Constitution, just his "will to power".
Perhaps Obama did perjured himself.
February 1, 2011 at 3:08 pm
Sorry, that's, "… did perjure himself."
-Gerry
February 1, 2011 at 4:20 pm
My previous comment seems to have disappeared into cyber limbo. Apologies in advance if it appears twice.
The judge's opinion/order may not prohibit preparations. The language states that it is presumed the law will not be implemented, whatever that means. The order is bit vauge (probably too vague to be enforcible by contempt) if preparations continue. Implementation may or may not be the same as preparations depending upon what actions are specifically taken by the O admin.
February 2, 2011 at 2:32 am
I'm also not sure that the Feds can't "prepare" for Obamacare's implementation – in the same manner that you can prepare for a party where the guests aren't planning to show up.
The Feds have lost the ability to force compliance (or any other action by the states) based on any presumed new authority granted by the law.
The law is dead – and so is the authority granted under the law. The States are free to ignore any demands (or requests) that are based on this law.
I'm sure the Administration can do something (else) contemptible without forcing itself on the states – I just don't know what it is. It could be as simple as (mis)using data in a way currently enjoined that would have been permitted under Obamacare.
February 2, 2011 at 2:51 pm
What the feds can do is what they always have had the power to do since 1913 – withhold federal funds to the states (whether related to healthcare or not). They withheld federal highway funds to force states to implement the 21 year old drinking age requirement.
February 2, 2011 at 3:41 pm
More than likely we'll see this go to the Supreme Court within the next year. As the SCOTUS will be the ultimate arbiter in this case, I expect one side will go to it sooner than later, as I believe they can sort of skip the Circuit Court stage.
While he did not stay his decision (like the Virginia District Justice did), it was because, in his eyes, the law is dead on arrival. I think attempting to enforce the law without a higher decision would be an issue, but continuing with preparations may not be, so long as nothing is executed.
My hopeful scenario is that 2012 represents a continuation of the 2010 midterms and Republicans take control of the Senate and the Presidency, making repeal possible. I don't trust the Supreme Court to issue a Constitutional ruling on this matter.