PPACA Unconstitutionality Ruling Stayed, Pending Fast Track Appeal

On March 3, 2011 U.S. District Judge Roger Vinson stayed his January 31 ruling that the entirety of PPACA was unconstitutional as a result of the individual mandate provision. In that earlier ruling the Judge held the individual mandate provision to violate the Commerce Clause of the U.S. Constitution, and also to be so intertwined with the rest of PPACA that the law as a whole could not stand. The stay will be in effect while an appeal is pending, however Judge Vinson gave the Justice Department only until March 10 to file its appeal and also required that it seek expedited review on appeal, either to the 11th Circuit or the Supreme Court. It is likely the Justice Department will appeal to the lower court given its apparent strategy to let the court challenges to PPACA proceed in their normal course (thereby possibly avoiding a Supreme Court decision in 2012 that could impact the presidential election).

What this means for the time being is that states and the federal government can continue to implement PPACA, which at this stage has nothing to do with the individual mandate but instead takes the form of popular measures such as extensions of coverage to overage dependents. This should help resolve confusion that could exist in states, such as Alaska, that vowed to stop implementing PPACA as a result of the January 31 ruling. Other than in Alaska this was largely a symbolic stance; a number of anti-PPACA states sought federal funding for implementation of the state exchanges that Alaska declined. (Alaska’s governor announced that the state will treat PPACA as being in place as a result of the ruling.) Clearly, also, the government agencies charged with implementing PPACA continued their activities notwithstanding the unconstitutionality ruling.

The question of whether or not that ruling acted as a true injunction against implementation of PPACA, or simply an official statement of disapproval, is addressed in the new ruling at some length. Judge Vinson expressed surprise that the Justice Department waited several weeks to file a request for “clarification” of the earlier ruling rather than immediately seeking a stay of its enforcement, given that his ruling made quite clear that it was meant to serve as the “‘functional equivalent of an injunction'” against enforcing a law the Judge had decreed to be “‘void.'”

Amidst this lecture of sorts, Judge Vinson acknowledged that “[i]t would be extremely disruptive and cause significant uncertainty” to enjoin enforcement of PPACA pending appeal. It is fortunate that Judge Vinson saw fit to recognize that and rule as he did, given his wholesale rejection of PPACA just five weeks ago. Which raises the possibility that the delayed timing of the Justice Department’s request for “clarification” of the order was in part strategic. From the balance of the Judge’s opinion, it would seem that a direct request to stay his order made in the immediate aftermath of the January 31 ruling would have had little likelihood of success.

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