Notes From Babel

Judge Vinson’s Extra-Judicial Order in the Individual Mandate Lawsuit

with one comment

Orin Kerr reports that Judge Vinson, the federal judge who recently ruled ObamaCare’s individual mandate was unconstitutional, ruled on the DOJ’s motion seeking clarification of whether the court had meant to enjoin the Obama administration from rolling out ObamaCare pending appeals.  In granting the DOJ’s motion for clarification—clarifying that it did prevent the administration from enforcing the Act—the court also unexpectedly ruled:

To the extent that motion is construed as a motion to stay, it is also GRANTED, and the summary declaratory judgment entered in this case is STAYED pending appeal, conditioned upon the defendants filing their notice of appeal within seven (7) calendar days of this order and seeking an expedited appellate review.

What does this mean?  Basically, it means Judge Vinson is tweaking the DOJ’s appellate strategy and applicable procedural rules.  As Kerr notes, the ruling forces the DOJ to choose whether to “wait seven days, let the stay order lapse, then immediately seek a stay in the Court of Appeals,” or “go to the Court of Appeals now and seek an amendment to the stay order.”  (Apparently the DOJ has chosen the latter.)

But all this is surprising—and improper—because the DOJ did not move for a stay.  As Judge Vinson’s ruling itself noted, the Florida attorney general argued in its opposition to the motion for clarification that “[i]f the Government was not prepared to comply with the Court’s judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify.”  Obviously, then, the opposing party understood the DOJ’s motion to be one for clarification only, not for a stay.

What this means is Judge Vinson order arguably violates procedure rules—including the really big procedural rule: the Fifth Amendment’s Due Process clause.  This is a problem because courts aren’t self-executing entities.  The nature of judicial power (as opposed to executive power or legislative power) is that it requires a claimant to first ask for relief before a court may act.  This is so for two basic reasons.  First, it is the nature of judicial power to decide only “cases” or “controversies.”  There can be no case or controversy until a claim or motion is formally brought before the court.  Second, there can be no due process unless all affected parties are notified of which of their interests may be impacted by the relief sought from the court, and given an opportunity to respond or oppose.

Here, both of these notions are undermined by Judge Vinson’s ruling.  As the ruling acknowledges:

The plaintiffs have asserted that the defendants’ motion to clarify is, “in fact, a transparent attempt, through the guise of seeking
clarification, to obtain a stay pending appeal.” See Pl. Resp. at 2. At certain parts in the pleading, the defendants’ motion does seem to be more of a motion to stay than a motion to clarify. Because the defendants have stated that they intend to file a subsequent motion to stay [Def. Mot. at 15] if I were to “clarify” that I had intended my declaratory judgment to have immediate injunction-like effect (which I
just did), I will save time in this time-is-of-the-essence case by treating the motion to clarify as one requesting a stay as well.

Simply put, whatever the true goals or motives of the DOJ as the moving party might have been, they are irrelevant if not plainly stated in the request for relief.  Time may be of the essence, but the rules of procedure provide mechanisms for immediate relief.  It is up to the parties to avail themselves of them.  Their failure to do so does not authorize the court to issue rulings beyond its jurisdiction.

[Update.  I failed to raise that Judge Vinson’s new ruling is also arguably a violation of the separation of powers doctrine to the extent it purports to trump the rules of appellate procedure.]

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Written by Tim Kowal

March 4, 2011 at 12:00 am

One Response

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  1. Interesting (and persuasive) take, Tim.

    Fern

    March 4, 2011 at 12:09 am


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