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From Politico and ADF:
Obama's 'risky move' in Florida
This week the administration may receive another blow from U.S. District Judge Roger Vinson.
AP Photo
CloseBy DAVID NATHER
2/27/11 6:26 PM EST
U.S. District Judge Roger Vinson has already dealt the Obama administration a staggering blow on health reform, and this week the administration may get another one from the fiery Florida judge.
The Justice Department asked Vinson to clarify his ruling that struck down the law as unconstitutional. Justice must file its brief on the motion by Monday, and Vinson has said he would rule quickly after that. At issue is whether Vinson meant to stop reform implementation in the 26 states that brought the suit.
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-+reset Listen VIDEO: Pols react to Florida ruling - Early Feb. '11
Latest on POLITICO
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The smart money says Vinson will halt implementation, and legal observers are wondering why Justice would take that risk.
“Having lost one game of chicken when it came to the severability of the mandate, the government is now challenging the same judge to back down on whether his decision is binding. Seems like a risky move,” said Randy Barnett, a law professor at Georgetown University.
Jonathan Turley, a constitutional law professor at The George Washington University, said he was surprised by the Justice Department’s move, given that it could have gotten a lot of support for its view that Vinson’s ruling wasn’t clear enough to shut down state implementation.
“I’ve really thought hard about what’s the tactical reason,” Turley said.
A Justice Department spokeswoman would not comment.
In his original ruling, Vinson stopped just short of issuing an injunction. He cited a court case that said a declaratory judgment is usually assumed to be “the functional equivalent of an injunction” when the executive branch is involved, because administration officials “will adhere to the law as declared by the court.”
“There is no reason to conclude that this presumption should not apply here,” Vinson wrote.
But even if Vinson were to rule that implementation should stop, that wouldn’t totally upend the law. Most legal experts think the administration would go straight to the 11th Circuit Court of Appeals and ask for a stay of Vinson’s ruling. And they predict that the court would grant it — probably quickly.
The court, which is about evenly balanced between Republican and Democratic appointees, would act sooner rather than later because it would get “sticker shock” at the idea of such disruption happening before the judges had a chance to review the overall case, Turley said.
But the stay would be a reluctant, because by asking for a clarification of a point that was already pretty clear, the Justice Department request was an “insulting motion” that was “disrespectful to the legal system and disrespectful to a judge in their circuit,” said Todd Gaziano, director of the Center for Legal and Judicial Studies at The Heritage Foundation.
“They knew there was nothing in Judge Vinson’s ruling that needed to be clarified. They’re not stupid,” Gaziano said.
The 26 states in the lawsuit have already filed a brief calling the Justice Department request “a transparent attempt to obtain a stay” and saying it shouldn’t get one.
Other legal experts, however, don’t think the Justice Department had a choice. “They just need clarity,” said Orin Kerr of The George Washington University, because Vinson’s decision “left it unclear what the Justice Department was supposed to do.”
“If the judge wants to enjoin the states, that’s fine from the Justice Department’s point of view. They just seek a stay” from the 11th Circuit, Kerr said.
Even a short-term disruption of implementation would encourage the states that have taken the hardest line against moving ahead. Already, the governors of states such as Alaska and Florida have said they won’t proceed with implementation.
But the main impact, in states that put their health law activities on hold, would be that the federal government might have to step in to run the health insurance exchanges all states are supposed to launch in 2014, according to Jon Kingsdale, a health care consultant who used to run the Massachusetts exchange.
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The ironic result of this might be that states with Republican leadership and free-market ideals could be the ones that end up with health insurance exchanges designed by the federal government.
Under the law, the exchanges are supposed to be set up by and run by the states, but the Department of Health and Human Services can step in and create them in states that aren’t far enough along by January 2013.
“I’m guessing that’s not a very attractive option for a lot of states,” said Joan Alker, co-executive director of the Georgetown Center for Children and Families.
The exchanges and the Medicaid expansion that are also to start in 2014 are the states’ two main roles in implementing the law, but “setting up the exchange is probably a more significant task because they have Medicaid programs already,” Alker said.
Some states are complaining that the Medicaid expansion will strain their resources and their budgets, a subject the House Energy and Commerce Committee will explore at a hearing on Tuesday. Even so, Virginia and other states that are challenging the law in the courts are still working on implementing it while the lawsuits are being heard, Alker said.
“I would imagine we will see a range of responses” from the states if Vinson says they should stop working on the law, Alker suggested. “This is really a political choice for states to make."
Read more: http://www.politico.com/news/stories/0211/50290.html#ixzz1FK3OuFfB
Read more: http://www.politico.com/news/stories/0211/50290.html#ixzz1FK2zVQzl
Obama's 'risky move' in Florida
This week the administration may receive another blow from U.S. District Judge Roger Vinson.
AP Photo
CloseBy DAVID NATHER
2/27/11 6:26 PM EST
U.S. District Judge Roger Vinson has already dealt the Obama administration a staggering blow on health reform, and this week the administration may get another one from the fiery Florida judge.
The Justice Department asked Vinson to clarify his ruling that struck down the law as unconstitutional. Justice must file its brief on the motion by Monday, and Vinson has said he would rule quickly after that. At issue is whether Vinson meant to stop reform implementation in the 26 states that brought the suit.
Continue Reading Text Size
-+reset Listen VIDEO: Pols react to Florida ruling - Early Feb. '11
Latest on POLITICO
February's Monthly Senate 10
DOJ to Vinson: Clear up confusion
Thomas speech draws new criticism
W.H. seeks full month for stopgap
At Hoover, Christie goes after Obama
Ross warns Israel: Look at Egypt
POLITICO 44
The smart money says Vinson will halt implementation, and legal observers are wondering why Justice would take that risk.
“Having lost one game of chicken when it came to the severability of the mandate, the government is now challenging the same judge to back down on whether his decision is binding. Seems like a risky move,” said Randy Barnett, a law professor at Georgetown University.
Jonathan Turley, a constitutional law professor at The George Washington University, said he was surprised by the Justice Department’s move, given that it could have gotten a lot of support for its view that Vinson’s ruling wasn’t clear enough to shut down state implementation.
“I’ve really thought hard about what’s the tactical reason,” Turley said.
A Justice Department spokeswoman would not comment.
In his original ruling, Vinson stopped just short of issuing an injunction. He cited a court case that said a declaratory judgment is usually assumed to be “the functional equivalent of an injunction” when the executive branch is involved, because administration officials “will adhere to the law as declared by the court.”
“There is no reason to conclude that this presumption should not apply here,” Vinson wrote.
But even if Vinson were to rule that implementation should stop, that wouldn’t totally upend the law. Most legal experts think the administration would go straight to the 11th Circuit Court of Appeals and ask for a stay of Vinson’s ruling. And they predict that the court would grant it — probably quickly.
The court, which is about evenly balanced between Republican and Democratic appointees, would act sooner rather than later because it would get “sticker shock” at the idea of such disruption happening before the judges had a chance to review the overall case, Turley said.
But the stay would be a reluctant, because by asking for a clarification of a point that was already pretty clear, the Justice Department request was an “insulting motion” that was “disrespectful to the legal system and disrespectful to a judge in their circuit,” said Todd Gaziano, director of the Center for Legal and Judicial Studies at The Heritage Foundation.
“They knew there was nothing in Judge Vinson’s ruling that needed to be clarified. They’re not stupid,” Gaziano said.
The 26 states in the lawsuit have already filed a brief calling the Justice Department request “a transparent attempt to obtain a stay” and saying it shouldn’t get one.
Other legal experts, however, don’t think the Justice Department had a choice. “They just need clarity,” said Orin Kerr of The George Washington University, because Vinson’s decision “left it unclear what the Justice Department was supposed to do.”
“If the judge wants to enjoin the states, that’s fine from the Justice Department’s point of view. They just seek a stay” from the 11th Circuit, Kerr said.
Even a short-term disruption of implementation would encourage the states that have taken the hardest line against moving ahead. Already, the governors of states such as Alaska and Florida have said they won’t proceed with implementation.
But the main impact, in states that put their health law activities on hold, would be that the federal government might have to step in to run the health insurance exchanges all states are supposed to launch in 2014, according to Jon Kingsdale, a health care consultant who used to run the Massachusetts exchange.
Continue Reading Text Size
-+reset Listen
The ironic result of this might be that states with Republican leadership and free-market ideals could be the ones that end up with health insurance exchanges designed by the federal government.
Under the law, the exchanges are supposed to be set up by and run by the states, but the Department of Health and Human Services can step in and create them in states that aren’t far enough along by January 2013.
“I’m guessing that’s not a very attractive option for a lot of states,” said Joan Alker, co-executive director of the Georgetown Center for Children and Families.
The exchanges and the Medicaid expansion that are also to start in 2014 are the states’ two main roles in implementing the law, but “setting up the exchange is probably a more significant task because they have Medicaid programs already,” Alker said.
Some states are complaining that the Medicaid expansion will strain their resources and their budgets, a subject the House Energy and Commerce Committee will explore at a hearing on Tuesday. Even so, Virginia and other states that are challenging the law in the courts are still working on implementing it while the lawsuits are being heard, Alker said.
“I would imagine we will see a range of responses” from the states if Vinson says they should stop working on the law, Alker suggested. “This is really a political choice for states to make."
Read more: http://www.politico.com/news/stories/0211/50290.html#ixzz1FK3OuFfB
Read more: http://www.politico.com/news/stories/0211/50290.html#ixzz1FK2zVQzl
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