The New Republic

When Judge Roger Vinson issued his decision on the Affordable Care Act, the first question everybody asked was "did he rule it unconstitutional?" The answer to that question was "yes."

The second question everybody asked was "did he issue an injunction halting implementation?" The answer to that question was "no." 

But then a third question emerged: Would Vinson's decision get in the way of implementation anyway? 

I spent much of the evening trying to track down a definitive answer. I never got one. But this email, from a friendly and learned court observer, may have the answer:

On the injunction question, it’s complicated, but it’s also kind of stupid, because in the end of course the government is going to be able to continue implementing the law.

I gather from the press accounts that [Vinson] entered a declaratory judgment—a declaration that the law is unconstitutional--not an injunction. If you don’t comply with an injunction, you’re in contempt of court. By contrast, you can “violate” a declaratory judgment with impunity. But in practice parties do not defy DJs. The reason is that, once a DJ had been entered, the person who got it can go back to court and get an injunction automatically, on the basis of the DJ. A DJ is often used against the government, because the court does not want to suggest that the government has to be threatened with contempt. The idea is: I (judge) know that you (government official) will comply once I tell you what the law is; I don’t have to order you to comply.

If he had entered an injunction, the US would immediately have sought a “stay pending appeal.” That means the injunction can’t be enforced while the case is on appeal. The US would seek the stay from him; if he denied it, from the 11th Circuit; if the 11th Circuit denied it—which would be inconceivable, in this case, in my view--from the S. Ct. Technically, a DJ does not have to be stayed, because it doesn’t require the US to do anything. But my guess is that the US will seek a stay anyway, just to make things clear. There is a risk that if the US seeks a stay, and the court of appeals says “we’re not granting a stay, because you don’t need it, since this is only a DJ” then that will be portrayed as a loss for the US. Vinson’s little maneuver—I’ll enter a DJ, and I’ll suggest you have to comply right away, but I won’t make it an injunction—is just jerkiness, designed to put the government in an awkward position without Vinson’s owning up to what he’s doing.

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