The American Prospect
Judge Vinson’s Self-Conscious “Clarification” Order
BY ADAM SERWER | POSTED 03/04/2011 AT 02:33 PM

Yesterday, Judge Roger Vinson, in response to a request for “clarification” from the federal government, issued a stay allowing implementation of the Affordable Care Act to proceed despite having ruled the law was unconstitutional. But he wasn’t happy about it.

“So to “clarify” my order and judgment,” Vinson wrote, “The individual mandate was declared unconstitutional. Because that “essential” provision couldn’t be severed from the rest of the Act, the entire legislation was void.” What part of “unconstitutional” don’t you understand Obama?

In his twenty page order, Vinson took a dry, somewhat defensive tone as he rehashed his 78 page ruling declaring the ACA’s individual mandate unconstitutional, and arguing that the mandate couldn’t be severed from the law itself, threw the whole thing out. Vinson had expected the administration to immediately request a stay or force the wheels of the federal government to immediately screech to a halt. “It was not expected that [the administration] 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,” Vinson wrote.

“It seemed wholly unnecessary to spend twenty pages restating something that he’d written in seventy pages a month before,” said Doug Kendall, President of the Constitutional Accountability Center, calling Vinson’s order “harshly worded” and “sarcastic,” and adding that the administration’s request was reasonable. “The government asked for the clarification because states were reacting in different manners to Vinson’s initial ruling.” Adam Winkler, a constitutional law professor at UCLA, disagreed. “The government asked for a motion to clarify. So he clarified.” 

But Winkler added that Vinson seemed to be implicitly responding to critics–particularly conservative ones–who had criticized his earlier ruling as “activist” and overly broad for striking the entire law. George Washington University Law Professor Orin Kerr criticized Vinson for using “a first principle to trump existing Supreme Court caselaw.” Vinson argued that his decision was the opposite of “activist” saying as a judge he could not “engage in the quasi-legislative undertaking of deciding which of the Act’s several hundred provisions could theoretically survive without the individual mandate,” and adding that it was Congress’ fault for leaving out the severability clause anyway. So there.

“The earlier ruling was voiced with great certainty as to the correctness of the decision, and the order was much more willing to admit the strength of the government’s argument,” Winkler says. “It was a strikingly different tone from the earlier ruling, which strident, clear and unambiguous that his was the correct interpretation of the Constitution.”

Also unusual were the terms of Vinson’s stay–demanding that the government file an appeal within seven days and request expedited appeal. Vinson’s order echoed the calls of Republicans who demanded Obama seek expedited review from the Supreme Court after Judge Henry Hudson ruled the individual mandate alone unconstitutional in December. “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,” Vinsons wrote. “It is very important to everyone in this country that this case move forward as soon as possible.” Some people more than others.

Kendall said Vinson is trying to “bully the federal government to prioritize his case over the many other challenges to health care reform and the hundreds of other important cases the government is litigating.” Winkler agreed that the terms were odd. “It is unusual is for a judge to say, you must seek an expedited review of my decision.”

What makes the terms particularly strange is that the administration could simply seek a broader stay from the 11th Circuit Court, circumventing Vinson’s demands. While the administration can probably comply with the terms fairly easily, that just begs the question of why Vinson felt it was so necessary to stick it to them in the first place.