Posted on 02/01/2011 9:18:24 AM PST by Signalman
Levin makes an interesting point that the Federal Judge today declined to issue an injunction because he didn’t need to. ObamaCare has been declared unconstitutional and the only thing Obama can do at this point is appeal it. And if chooses not to respect the court’s decision from today and continues to implement the law, Levin says the litigants should go right back in front of the Judge and file a contempt order: (Audio at Link)
Not must be, may be. Literally, text books have been written on just this subject, but generally original jurisdiction may be concurrent, or exclusive. The Court has held (in a variety of cases) that in controversies arising between the states, the Court's jurisdiction is concurrent with the trial courts, upholding prior federal legislation that established just that.
"That being so, of what value is the unconstitutional ruling by an inferior court?"
Well, even though it's "only" a inferior court, statutory law says it is legally binding, at least until such a time that the decision is reversed on appeal or stayed.
However, it also has a practical value. Yes, it's possible for the Supreme Court to act as a trial court (and it has on incredibly rare occasion), it's just easier as a practical matter for them to let a lower courts establish a trial and appellate record to then review.
Well this shows us just how much of a legal scholar Obama isn’t since he does not understand this.What Levin says is true any further implementation is acting in violation.Could he be impeached for this if he continues to implement it?
Thanks. Odd that the two judges agreed on the mandate but not on severability.
Might be a good time to haul out the reason I took the handle "No Truce With Kings."
“Here is neither haste, nor hate, nor anger,” peal the Trumpets,
“Pardon for his penitence or pity for his fall.
“It is the King!”—inexorable Trumpets—
(Trumpets round the scaffold at the dawning by Whitehall!)
. . . . . . .
“He hath veiled the Crown And hid the Scepter,” warn the Trumpets,
“He hath changed the fashion of the lies that cloak his will.
“Hard die the Kings—ah hard—dooms hard!” declare the Trumpets,
Trumpets at the gang-plank where the brawling troop-decks fill!
Ancient and Unteachable, abide—abide the Trumpets!
Once again the Trumpets, for the shuddering ground-swell brings
Clamour over ocean of the harsh, pursuing Trumpets—
Trumpets of the Vanguard that have sworn no truce with Kings!
All we have of freedom, all we use or know—
This our fathers bought for us long and long ago.
Ancient Right unnoticed as the breath we draw—
Leave to live by no man's leave, underneath the Law.
Lance and torch and tumult, steel and grey-goose wing
Wrenched it, inch and ell and all, slowly from the king.
Till our fathers ‘stablished,, after bloody years,
How our King is one with us, first among his peers.
So they bought us freedom-not at little cost—
Wherefore must we watch the King, lest our gain be lost.
Over all things certain, this is sure indeed,
Suffer not the old King: for we know the breed.
Give no ear to bondsmen bidding us endure.
Whining “He is weak and far”; crying “Time will cure.”
(Time himself is witness, till the battle joins,
Deeper strikes the rottenness in the people's loins.)
Give no heed to bondsmen masking war with peace.
Suffer not the old King here or overseas.
They that beg us barter—wait his yielding mood—
Pledge the years we hold in trust-pawn our brother's blood—
Howso’ great their clamour, whatsoe’er their claim,
Suffer not the old King under any name!
Here is naught unproven—here is naught to learn.
It is written what shall fall if the King return.
He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom's name.
He shall take a tribute, toll of all our ware;
He shall change our gold for arms—arms we may not bear.
He shall break his Judges if they cross his word;
He shall rule above the Law calling on the Lord.
He shall peep and mutter; and the night shall bring
Watchers ‘neath our window, lest we mock the King —
Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies.
Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell-deny-delay.
We shall drink dishonour, we shall eat abuse
For the Land we look to—for the Tongue we use.
We shall take our station, dirt beneath his feet,
While his hired captains jeer us in the street.
Cruel in the shadow, crafty in the sun,
Far beyond his borders shall his teachings run.
Sloven, sullen, savage, secret, uncontrolled,
Laying on a new land evil of the old—
Long-forgotten bondage, dwarfing heart and brain—
All our fathers died to loose he shall bind again.
Here is nought at venture, random nor untrue
Swings the wheel full-circle, brims the cup anew.
Here is naught unproven, here is nothing hid:
Step for step and word for word—so the old Kings did!
Step by step, and word by word: who is ruled may read.
Suffer not the old Kings: for we know the breed—
All the right they promise—all the wrong they bring.
Stewards of the Judgment, suffer not this King!
-— Rudyard Kipling
The living and the dead.
I'm sure Freeper BKO would have been interested in this issue.
Thank you sir for an excellent summary
"I shall make it live!" says a modern Rodion Romanovich Raskolnikov, born of a Kenyan father.
Levin is right. The Obama administration though will seek rehearing and ask for a stay. Rehearing will be denied, but a stay will probably be granted in some form. The the case will then go to the 11th Circuit Court of Appeal in Atlanta, or it may go to the US Supreme Court on an expedited basis, perhaps with a limited stay in effect while the case is pending.
He shall mark our goings, question whence we came,Liberty does not survive when Justice falters.
Set his guards about us, as in Freedom's name.He shall take a tribute, toll of all our ware;
He shall change our gold for arms—arms we may not bear.He shall break his Judges if they cross his word;
He shall rule above the Law ...
Might, may, shall, shay.
“Will” it indeed?
Rip - it’s not that odd when you think about it. The dems intentionally removed the severability clause in an effort to protect the individual mandate. The entire scheme revolves around the mandate or it fails of its’ own weight.
Knowing this, the dems made it legally impossible to sever it. Almost daring some Judge ti rule the entire massive legislation to be unconstitutional over one itty bitty mandate. They figured the Judges would be intimidated and dare not topple the entire house of cards.
Hudson bit. He ruled the individual mandate unconstitutional and punted on the constitutionality of the rest of the law. He was hoping to cut the baby in half to protect himself. Vinson, on the other hand, was not intimidated at all. He said that if the dems intentionally removed the severability clause, then the individual mandate, as unconstitutional, must cause the entire law to be unconstitutional as well.
Notice the media and law school professor spin today - they are all calling for the individual mandate to be severed now. They are trying to have it both ways. Hudson flinched. Vinson didn’t.
“They said that states cannot use the ruling as a basis to delay implementation in part because the ruling does not rest on “anything like a conventional Constitutional analysis.” Twenty-six states were involved in the lawsuit.”
In addition to the Plaintiffs seeking an injunction, I just so hope that one or more of the 26 states indeed refuse further implantation. This would force the Obammunists to sue those states for refusing to implement a federal law that has been declared to be null and void. Now wouldn’t that be fun to watch!!!
That is how such cases progress in trial and appellate practice. Rehearing is almost always asked for, and in federal practice, it is sought via a motion to alter or amend judgment. And the federal government almost always gets a stay pending appeal.
Good stuff for something that is over 100 years old. I guess that makes it too hard for liberals to understand.
I wouldn't underestimate the power of a federal judge to enforce his rulings. The administration can appeal but they dare not ignore.
If this judge's ruling is not overturned, and the administration engages in contempt of the ruling, there may be a delay as long as executive privilege applies, even without merit. But I don't think people like Holder would look forward to answering the judge's questions AFTER the Obama administration ends. Cessation of contempt does not erase contempt.
The ultimate mechanism of the courts is the Second Amendment. I'm sure Nixon's people inherently understood that they could not ignore the judiciary; certainly not if the people are willing to back them.
“Rehearing will be denied, but a stay will probably be granted in some form.”
Actually, not really. Here is what Vinson said in his decision:
“Injunctive relief is an “extraordinary”. . . and “drastic” remedy. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” . . . “
In other words, the Government must now act on the presumption that the law is unconstitutional until the the Supreme Court rules otherwise.
There is plenty of prescedent for this. The clearest example is if a circuit court rules that the death penalty is unconstitutional. It does not need to issue a stay of execution until the case is decided by the Supreme Court — and a government cannot ignore the lower court ruling pending the Supreme Court’s decision. So it’s time out — if not game over — for Obamacare, until the Supremes sing.
He could. But it probably wouldn't come to that.
As each month passes, the 2012 election nears. Democrats have a lot to fear from that election. The rout they just suffered was caused by the liberal politicians mis-reading the interests of the typical American.
Americans are generous to a fault. They empathize with people who struggle against problems not of their own making and have, through following the Democrats and RINOs, impoverished our nation through monstrous debt.
Obamacare was a bridge too far for the libs. It was rammed through without even allowing it to be read and it was passed through bribery of several states. Pro-socialist media continue to claim that it has the support of a majority of Americans, but they must continue to lie about the cost in order to come anywhere near a majority.
Let's have the next election be about whether the nation shall institute another entitlement further bankrupting an already broken system. I look forward to that.
Yet as Mark Levin correctly points out, as the Obama administration moves forward with implementation despite the court’s ruling, the court is certain to be asked by one or more of the states for an injunction. And in some form, an injunction will be issued and then stayed in whole or in part, pending appeal.
On Monday, Judge Roger Vinson issued a ruling in a case challenging the constitutionality of the Affordable Care Act. The ruling comes after legal action in cases regarding the law in courts across the country. Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law. Two federal judges – in the Eastern District of Michigan and Western District of Virginia – have fully upheld the law, and one federal judge in the Eastern District of Virginia ruled against the individual responsibility provision but declined to bar full, continuing implementation.
The decision issued on Monday is one district court decision, and we believe it to be very wrong. The Department of Justice has made clear that it is reviewing all of its options in responding to this case, as it does in all cases. Implementation will continue.
Legal experts agree with our assessment of Judge Vinson’s ruling. Here’s what they are saying about the ruling and the case:
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