Borrowed from Cato - Thank you
By Ilya Shapiro
As I continue digesting Judge Vinson’s ruling, I notice two key things beyond the facts that the “individual mandate is unconstitutional”:
1. In performing his severability analysis — determining which parts of the overall legislation survive — the judge threw out all of Obamacare:
In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed.
This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.
2. In discussing whether to issue an injunction – a judicial command to do or refrain from doing something — the judge determined that his declaratory judgment in this context was the same as an injunction. That is, a federal court saying that a piece of legislation is unconstitutional is effectively the same as a decision mandating the government to act:
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. [Quoting a D.C. Circuit opinion written by none other than then-Judge Antonin Scalia]
In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty-gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks. Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.
NB: The New York Times and Washington Post report that Judge Vinson has already stayed his own ruling pending appeal, but this is an incorrect reading of the opinion, for the reasons stated above. Moreover, the court’s docket, which is now closed for the day, contains no such stay — nor has plaintiffs’ counsel received notice of one.