The Lawlessness Behind Vinson’s Stay Order

Yesterday, in response to DOJ’s motion asking Tea Party Judge Roger Vinson to clarify whether his error-ridden opinion striking down the Affordable Care Act takes immediate effect, Vinson showed uncharacteristic restraint by staying his decision and allowing the Act to move forward while the case is on appeal. That, however, is only part of the story.

Although Vinson did issue a stay, he devoted the lion’s share of yesterday’s order to a “rather defensive summary of his earlier opinion and, at times, a response to critics.” As with so many things regarding Judge Vinson, his order is riddled with legal errors:

  • First, in striking down the ACA, Judge Vinson did not issue an “injunction” — the legal term for an order compelling a party to take or refrain from a certain action. Instead, Vinson issued something known as a “declaratory judgment.” This distinction is important because, in a case called Kennedy v. Mendoza-Martinez, the Supreme Court held that the United States is “free to continue to apply” a law that is subject to a declaratory judgment “[p]ending review in the Court of Appeals and in this Court.” In other words, had Vinson actually followed the law, it would have been completely unnecessary for him to issue a stay because his decision would have never halted the ACA in the first place.

Vinson attempts to dodge this binding Supreme Court decision by noting that, since this case was decided, Congress repealed a completely irrelevant statute concerning whether a single judge may enjoin the United States. That statute has nothing to do with declaratory judgments, however, so the fact that it was repealed gives Vinson no authority to defy Mendoza-Martinez.

  • Second, Vinson likely chose not to issue an injunction because he failed to complete the lengthy steps required by law before a judge may do so. Under the Federal Rules of Civil Procedure, an injunction must “describe in reasonable detail . . . the act or acts restrained or required.” As the Supreme Court has explained, this requires a court to “frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.”

Vinson, however, provided no such instructions. Does Medicare now have to pay providers at different rates depending on whether they are subject to his declaratory judgment? What payment rates should Medicare provide to doctors who are subject to his order? Are members of the National Federation of Independent Business, which is a party to this lawsuit, no longer allowed to claim tax benefits under the ACA? How is the IRS supposed to know who is and who isn’t an NFIB member? Vinson answers none of these questions, and therefore left the United States will no idea how it could have complied with his original order had that order not been stayed.

  • Third, before a party can benefit from a court order, it must possess the legal right to seek legal relief — a requirement known as “standing.” Yet Vinson held that only two of the plaintiff states — Idaho and Utah — have standing to sue in this case (the decision that these two states have standing was itself erroneous). Vinson lacks the legal authority to apply his order to the other 24 state parties, but he does not seem to care. Indeed, at one point in yesterday’s order, he implies that he could very well have imposed his order on the state of Washington — even though he never determined that Washington has standing.
  • Fourth, as Professor Orin Kerr, a former constitutional advisor to Sen. John Cornyn (R-TX), explains, Vinson issued the stay “with an important condition: DOJ must file its appeal in seven days, and DOJ must then request an expedited appeal in the circuit court. This seems pretty unusual to me, given that DOJ wasn’t even seeking a stay from Judge Vinson. The pace of appellate litigation is normally up to the Federal Rules of Appellate Procedure, the litigants, and the Court of Appeals judges — not a district court judge.”

The bottom line is that Vinson’s order bears no resemblance to the law, and will almost certainly hurt his credibility with an appellate court.