DAN JUNEAU: Obama Administration Taken To The Judicial Woodshed

It was not a good week for the Obama administration in federal courts. In two high-profile issues, two different federal judges took Team Obama to the judicial woodshed with rulings that upset the administration’s applecart in two key areas.

The decision that received the most media attention was rendered in Tallahassee. Judge Roger Vinson ruled that the individual mandate requirement forcing Americans to buy health insurance is unconstitutional and that, since the statute had no “severability clause,” the entire act is unconstitutional as well. Judge Vinson’s 78-page ruling is not fluff. He noted that an early version of the legislation included a severability clause (stating that, if part of the law is found to be unconstitutional, other sections of the law are not affected), but the final version did not, indicating the intent of Congress not to include one. Of course, the decision to omit the severability clause in the final version was due solely to politics, not legal construction. The inclusion of the clause would have necessitated another vote in the Senate—after Scott Brown (an opponent of the law) had been elected in Massachusetts. Brown’s election may have set off tumbling dominos that end up eventually killing the law.

The other judicial setback for the Obama administration came from Judge Martin Feldman in New Orleans. Feldman absolutely savaged the administration for disregarding his previous ruling declaring the offshore oil and gas drilling moratorium invalid. After the initial ruling, Interior Secretary Ken Salazar responded by issuing another moratorium order by simply tinkering with the language of the first. Judge Feldman was not impressed with that flagrant act of sophistry. He held Salazar in civil contempt for engaging in what he called “determined disregard” for his prior ruling.

There is no doubt that Salazar and the Obama administration have turned a deaf ear toward Judge Feldman and the Gulf Coast businesses that have petitioned for an immediate return to drilling. Even though the moratorium has officially been “lifted,” not one single new deep-water permit has been issued. Feldman’s ruling is tantamount to a judicial scream of “Enough is enough!”

It will be interesting to see if the Obama administration turns a deaf ear toward Judge Vinson’s ruling on the health care bill as well. Vinson did not issue an injunction against any further implementation of the health care bill because he said it wasn’t necessary. If Team Obama continue the implementation, he reasons, they would be engaging in an unconstitutional activity. Absent a different opinion by a higher court, it would be illegal for them to proceed.

Where the drilling moratorium and Health Care Act end up at this juncture is unclear. The federal government will definitely appeal Judge Vinson’s ruling. The Supreme Court could give it an expedited hearing, but that is not a certainty. Most of the highly contested provisions of the act don’t take effect until 2014, so the high court may not give it a fast track.

The drilling moratorium is a much different situation. The longer the Obama administration refuses to allow drilling to occur, the worse economic conditions get on the Gulf Coast and the more dependent the nation becomes on foreign oil. So far, the president’s response is similar to that of President Andrew Jackson when the high court handed down a ruling he disagreed with: “Justice Marshall has his decision; now let him enforce it!” Jackson retorted. That is how the Obama administration has responded to Judge Feldman.

He isn’t impressed.

Judge Vinson likely won’t be either if they treat his ruling with similar contempt.



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