HotAir Doesn’t Really Get Litigation (or, Why “ObamaCare” Remains Valid)

Man, things like this are infuriating. Malkin’s pet website tries to draw an inference of bad faith, or bungling, from the White House’s request to Judge Vinson that he clarify that, during the pendency of appeals, the Affordable Care Act remains valid and enforceable. Legal scholar Ed Morrissey:

Essentially, the Obama administration wants Vinson to tell the states to obey an unconstitutional law.  This isn’t a necessary step for an appeal, although it might or might not be a prerequisite to an application for a stay at the 11th Circuit.  Either way, it’s a fool’s errand.  If a judge declares an entire law void on the basis of constitutionality, he is hardly likely to issue an order telling states to obey it anyway.

True, Vinson thinks the law is “unconstitutional.” But standard practice, as we’ve seen in the Prop 8 litigation, is to stay effect of such a judgment pending appeal. Judge Vinson’s judgment doesn’t take legal effect, and become enforceable, until that point, and because disturbing the status quo while awaiting appeal would throw the entire country into chaos, probably every day given the regularity of constitutional challenges to federal statutes, the Affordable Care Act remains intact.

Lawyers will know this. On one of my cases, we won a trial in, like, 2005 or something. But we can’t use the district court’s judgment to quash foreign proceedings against our client until the First Circuit affirms on appeal (as I think they will). And, last January, BNY Mellon lost an adversary proceeding to Lehman Brothers in the SDNY’s Bankruptcy Court. But they didn’t pay the damn thing until settlement, like, last month.

Can you imagine how it could be otherwise here? Critical thinking, guys.


  1. You posted on a Saturday! Yay!

  2. So… if a “legal scholar” fails basic law in the woods, and no one is around to hear it, is he still a legal scholar?

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