By Bill Wilson -
On January 31st, when Judge Roger Vinson declared the individual mandate of ObamaCare to be unconstitutional, he also determined that the legislation could not be severed from the rest of the legislation, nullifying the entire law. This means that, unless and until a higher court stays or overturns Judge Vinson’s decision, ObamaCare is no longer the law of the land.
Similarly, all regulations derived from the health care takeover have been voided by Judge Vinson’s ruling, and every bureaucrat at the Department of Health and Human Services (DHS), Center for Medicare and Medicaid Service (CMS), and any other affected agency must stop what they are doing this instant.
The White House has yet to follow the law as expressed by the court and ensure that every single employee of the executive branch does the same.
Instead, the Obama Administration has responded with sheer arrogance. “Implementation will continue,” wrote White House Adviser Stephanie Cutter on the Administration’s blog. And surely it has. Call it the rule of Obama.
According to information provided by ObamacareWatcher.org’s John Vinci, who is closely monitoring the bill’s regulations, the process is indeed moving forward.
Appearing just a day after the ruling, CMS Administrator Donald Berwick appeared at the Brookings Institution to announce that he is moving full speed ahead with promulgating regulations enforcing the unconstitutional law. He mentioned one in particular: “The notice of the proposed rulemaking [affecting Accountable Care Organizations] is not yet out yet, it will be out very soon… There will be a comment period.”
Berwick made no mention of the court ruling, which apparently has not affected his own schedule for implementation. Nor did he comment on just how his agency could lawfully promulgate regulations enforcing a law that has been voided. But there he was, clearly stating that his office has continued its work to put ObamaCare into effect.
There are other clear indications that the regulatory process is moving forward with ObamaCare. At least two information collection requests have been filed with the Office of Information and Regulatory Affairs, a regular request on February 3rd and an emergency request on the same day “to ensure that states complete the required development of an Updated State Plan for a Home Visiting Program and the Department meet its statutory deadlines.”
Agencies are required to submit such requests whenever there is a change of an official form that, again, is being promulgated pursuant to some law. These specific requests fail to explain how the agencies can implement forms for a law that is no longer in effect.
All three of these instances make it evident that Ms. Cutter was very correct in her three-word summation. Implementation is continuing. And they all constitute executive and regulatory actions by the Obama Administration enforcing a nullified law in the aftermath of federal judge’s ruling — actions explicitly barred by the ruling.
Of course, none of this should be surprising. It’s not the first time Barack Obama has defied an order issued by a court of law. After Judge Martin Feldman enjoined the execution of a moratorium on deepwater off-shore oil drilling as arbitrary and capricious, Department of Interior Secretary Ken Salazar simply reissued essentially the same regulation.
Ultimately, on February 2nd, Judge Feldman found the Obama Administration to be in contempt for its “determined disregard” of his ruling. He wrote, “Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance.”
Although Salazar supposedly lifted the second moratorium before Judge Feldman could strike it down, “not a single deepwater permit has been issued in nine months,” according to Offshore Marine Service Association President Jim Adams. The association is calling it an informal moratorium.
So, both in the Gulf of Mexico and with ObamaCare, the White House is hell-bent on doing whatever it pleases, whether or not it is lawful or constitutional. That includes defying the lawful orders issued by federal judges.
In fact, Barack Obama, when he took office, swore to “preserve, protect and defend the Constitution of the United States”. That includes enforcing the law as expressed by federal courts, duly established by Congress, whose decisions in John Marshall’s words “say what the law is”. He has now at least twice violated his oath of office by defying these rulings.
In the case of ObamaCare, the plaintiffs now need to go back and request that Judge Vinson issue a writ of prohibition, clarifying the binding nature of the January 31st decision. He had written that declaratory relief was the “functional equivalent” of an injunction, which the plaintiffs had requested. At the time, he had ruled it was “not necessary”.
However, with the Obama Administration’s unambiguous defiance of the ruling, clearly further action is required to get the government to cease and desist from implementing the health care takeover.
Thus far, the White House has not appealed the decision, although it has sixty days to do so under law. Nor has it sought a stay of the decision, which would be the only way short of being overturned for the ruling not to take effect.
It has simply ignored the decision. The separation of powers is predicated on coequal branches of government, but under Obama’s reign, it appears that one branch is more equal than the others.
That is not the rule of law. It is the rule of Obama. And the plaintiffs need to move quickly to avert a constitutional crisis. Without a stay from a higher court, the White House is bound by law to follow Judge Vinson’s ruling. This lawlessness must not prevail.
Bill Wilson is the President of Americans for Limited Government.