On a recent thread, L’Etat, C’est Moi we had a nice long discussion over the ruling by Federal Judge Vinson in the lawsuit by 26 states [more than half of those recognized under the Constitution, a somewhat smaller fraction of the 57 that the Obama Administration claims (/sarc)]. The Left is under the belief that court rulings are kind of like a popularity contest and have no validity until the Supreme Court counts the votes. I think we settled the matter except for the binge drinkers of Kool-Aid.

Judge Vinson has just clarified matters further with a legal bitch-slapping of epic proportions. As a connoisseur of such, I am deeply impressed.

Short form. The judge declared the law unconstitutional, explicitly and in its entirety. No wiggle room. He further stated explicitly that he did not need to issue a special injunction; because it was assumed that the Federal government would obey both the Rules of Civil Procedure and court orders. Maybe any other Federal government, but not this one.

Under Federal law, if any Federal judge declares a law unconstitutional, it is dead from that moment until and unless the judge is overruled by a higher court. The government can ask for stay of the order; either from the trial court or an appellate court within 60 days of the ruling if they wish to appeal. Neither is required to grant the stay. If they fail to appeal within that 60 days, the court ruling stands and the government is barred from further appeals of that ruling.

The Obama administration’s response was to pretend that the ruling had not happened, until it reached the point where the states started taking the ruling seriously and refusing to comply with Federal mandates under the law. Then, the Administration asked Judge Vinson for a “clarification” of the ruling that would order the states to obey the Federal mandates in defiance of his own court order.

Judge Vinson responded. Boy, did he respond. Allow me to quote from the order as posted at HOTAIR, for your entertainment:

In his ruling, Vinson repeated what he has said previously — that “the citizens of this country have an interest in having this case resolved as soon as practically possible.”

“That was nearly eleven months ago,” he wrote. “In the time since, the battle lines have been drawn, the relevant case law marshaled, and the legal arguments refined. Almost everyone agrees that the constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States. It is very important to everyone in this country that this case move forward.”

After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. However, the stay will be conditioned upon the defendants filing their anticipated appeal within seven (7) calendar days of this order and seeking an expedited appellate review, either in the Court of Appeals or with the Supreme Court under Rule 11 of that Court.

[ my emphasis above]

If they do not file an appeal of this case to either the Circuit Court or the Supreme Court for expedited appeal, in that 7 days; the court order is in force with a vengeance. And we have ourselves a dandy little Constitutional Crisis. There are implications.

And then he took apart the Administration’s claims that it was not an “ORDER, order” from the court.

So to “clarify” my order and judgment: The individual mandate was declared unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to “clarify.”6


The defendants have suggested, for example, that my order and judgment could not have been intended to have the full force of an injunction because, if I had so intended, I would have been “required to apply the familiar four-factor test” to determine if injunctive relief was appropriate. …

I did not undertake this four-factor analysis for a simple reason: it was not necessary. Even though the defendants had technically disputed that the plaintiffs could satisfy those four factors, the defendants had acknowledged in their summary judgment opposition brief that, if I were to find for the plaintiffs, separate injunctive relief would be superfluous and unnecessary. The defendants expressly assured the court that, in light of the “long-standing presumption that a declaratory judgment provides adequate relief as against an executive officer, as it will not be presumed that that officer will ignore the judgment of the Court,” any declaratory judgment in the plaintiffs’ favor “would [ ] be adequate to vindicate [the plaintiffs’] claims.” Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for summary Judgment (doc. 137), at 43. Consequently, there was no need to discuss and apply the four-factor test to determine if injunctive relief was appropriate because the defendants had confirmed that they would “not . . . ignore the judgment of the Court” and that my “declaratory judgment would [ ] be adequate.” In other words, the defendants are now claiming that it is somehow confusing that I bypassed the four-factor test and applied the “long-standing presumption” that they themselves had identified and specifically insisted that they would honor.

[my emphasis again]

In their own filing to the court, they agreed that if there was a ruling against them, they were screwed.

If they do not file, the ruling stands. If the Administration attempts to draw on Andrew Jackson’s model [“Chief Justice Marshall has made his ruling, let him enforce it.”] it will require a decision from every active official who has sworn the Oath, and those who have sworn it in the past.

If they file for an appeal, and it is denied by the courts [who can choose whether they decide that there is merit in the appeal or not], and they continue to try to enforce Obamacare, the same situation holds.

If either court accepts it for appeal, this case becomes the hill that they have to die on. And I will note that all Federal courts have a vested interest in seeing their orders obeyed, and this is not the first time that this administration has ignored court orders. And for the benefit of OFA/SEIU, et. al.; if anything tragic now happens to Judge Vinson, THE ORDER STILL STANDS.

It’s ON! And suddenly Kool-Aid is not the fashionable drink as reality approaches against their will.

LC Subotai Bahadur, Lord Pao An

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By LC Subotai Bahadur, Lord Pao An

Retired Peace Officer. Living History re-enactor [Co.'I', First US Dragoons] crewing a 12 lb. Mtn. Howitzer. Publish an online newsletter on military and political affairs [by email, largely because it goes to deployed troops. Thus this is not link-whoring.]

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