I want you to imagine the following scenario with me, please.
The Patriot Act has passed. It’s been in effect for a year or so and George W. Bush is ramping up for full enforcement of its provisions. The Librarians have filed a lawsuit against the Bush Administration, alleging the Act is an unconstitutional infringement on our right to be free of unlawful search and seizure. They’ve not been fond of the Act from the beginning, you know, even joining with the ACLU to protest gov’t actions under the Act.
During the trial, the Bush administration argues that the Library Search provisions are inherently necessary to the Act and that it can’t function without them. Congressional action seems to reinforce that interpretation, as the Act passed the House with a severability clause, but the Senate version stripped it out. The House later adopted the Senate version, leaving the final law without the customary clause stating that if any part of the Act was declared unconstitutional, the remainder of the Act would remain in full force and effect.
The Federal Judge, in considering the case, determines that the contested part of the Patriot Act does, indeed, overstep the government’s legitimate Constitutional limits and he issues a declaratory judgment against the Bush administration. Everyone anticipates that the Bush administration will request a stay of the judgment pending appeal, but the request never materializes.
Several weeks pass, during which time the administration continues with the implementation of the Patriot Act as if the ruling had never occurred, President Bush comes back to the same Federal Judge and requests that he “clarify” his ruling, as he is unable to understand it.
Stop right there. Can you just hear the wailing and gnashing of teeth? The leftists by now have been rioting non-stop over the evil Bushitler and his imperial Presidency.
He’s so dumb he doesn’t even understand a judge’s ruling when it’s written in plain English; when every sentient being in the press and Washington, D.C. can understand it.
The judge comes back with his clarification, and it reads, in part:
While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import. Accordingly, I will attempt to synopsize the 78-page order and clarify its intended effect. To that extent, the defendantsâ€™ motion to clarify is GRANTED.
So to â€œclarifyâ€ my order and judgment: The individual mandate was declared
unconstitutional. Because that â€œessentialâ€ provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the â€œpracticalâ€ and â€œfunctional equivalent of an injunctionâ€ with respect to the parties to the litigation. This expectation was based on the â€œlongstanding presumptionâ€ that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they 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 â€œclarify.â€ [FN6]
[FN6] The defendants have suggested in reply to the plaintiffsâ€™ response that the reason for the delay was due to the fact that my order â€œrequired careful analysis,â€ and it was only after this â€œcareful reviewâ€ that the defendants could determine its â€œpotential impactâ€ with respect to implementation of the Act (see doc. 164 at 11). This seems contrary to media reports that the White House declared within hours after entry of my order that â€œimplementation will proceed apaceâ€ regardless of the ruling. See, e.g., N.C. Aizenman and Amy Goldstein, U.S. Judge in Florida Rejects Health Law, Washington Post, Feb. 1, 2011, at A01 (quoting a senior White House official).
While the above is a 100% make-believe scenario, it is exactly where we are with regard to the Obama Administration and lawsuits concerning Obamacare.
Twenty-six states have sued the administration, alleging that the individual mandate is unconstitutional and a Federal judge has agreed, issuing a declaratory judgment against the administration. At this point, President Obama should have either requested a stay pending appeal or ceased implementing Obamacare. What did he do? Pretended like the ruling never happened.
Now the administration has asked the judge to go over it with them one more time, because they’re not at all sure that they heard him right the first time.
The judge’s understandable disdain for the disingenuous request of the Obama administration is made strikingly clear. And our mortification at the administration’s contempt for our rule of law and the judicial system should be every bit as deep.
The administration has every right to appeal this ruling. Everyone knows this case will end up before the Supreme Court and the decision will hinge on whether or not Anthony Kennedy has indigestion or sufficient sleep the night before, or some other equally inane basis for his vote. But the administration does not have the right to simply pretend that the judge is an insignificant lackey in our system of government, undeserving of the respect of his office.
I’m amazed that none of the Presidential advisors have yet seen fit to explain to him that we have three co-equal branches of government and that his best interests will not be served by treating one of those branches as if it were powerless. Even his liberal cohorts on the bench will not likely take kindly to that threat against their fiefdom, because, after all, they are in office for the rest of their lives, while he likely has less than two years to go.
If you want to read more about this ruling and its ramifications in an excellent post, I first read of it at Ace of Spades Headquarters.