Are we we experiencing a quiet constitutional crisis?
It’s well known that Judge Roger Vinson ruled yesterday that the individual mandate exceeded the powers of the federal government under the Commerce Clause. But he also ruled that because the law lacked a severability clause and the law’s proponents had argued that the individual mandate was a necessary part of the scheme, the entire law was invalid.
That means that under the ruling, the law is void and cannot be implemented from this point forward. The Administration’s legal remedy is to seek a stay of the ruling pending appeal. It cannot just defy a federal court ruling. If it tries, the plaintiffs should go to court for the injunction and/or seek an order of contempt against the administration. Pretending that the ruling doesn’t change anything when it unequivocally does, would be both a petulant and extra-legal approach to governance.
So has the Obama administration halted the implementation of the law? The answer is: No.
The website of the White House is unambiguous about this: “Implementation will continue.”
Vinson’s decision did not include an injunction to stop the implementation of health care reform on the grounds that an injunction would be superfluous. He argued that the government would stop implementing the law automatically once it was announced as unconstitutional.
That, apparently, hasn’t happened.
So here’s a question: should government officials mindful of the constitution start defying the Obama administration to honor the decision by the court? If, say, you were charged with monitoring the computers that send out rebate checks to seniors with high prescription drug costs, should you turn off the computer?
Much of this is probably theoretical. Most of the law did not yet apply, so implementation was minimal. But if you were working on implementing the law, shouldn’t you be obligated to stop work?
“Pencils down” as we used to say back when an M&A deal fell apart.
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