Late Thursday, February 17, the Obama Administration filed an incredibly odd and almost insulting “Motion to Clarify” the judgment in the case it lost against 26 states and the NFIB in the Obamacare litigation in Florida v. U.S. Department of Health and Human Services, No. 10-cv-00091 (N. D. Fla.)(Judge Vinson). With this motion, the Administration has now stated officially that, notwithstanding the Judge’s declaration of the Patient Protection and Affordable Care Act (ACA or Obamacare) as unconstitutional, the Administration does not interpret the Judge’s order as requiring the Administration to cease carrying out the unconstitutional ACA. The “Motion to Clarify” does not explicitly seek reconsideration of Judge Vinson’s judgment declaring the ACA unconstitutional, nor does it seek a stay of that judgment; it simply says the Federal Government will not be following the Judge’s judgment declaring the ACA unconstitutional unless the Judge issues another order stating to the Government that the Judge did, in fact, anticipate its judgment to have immediate injunction-like effect.

This motion really is one for reconsideration of the entire case and to stay the judgment in disguise, but the Administration cannot meet the necessary standard to stay the judgment. Most legal observers would conclude that the Administration filed this “Trojan Horse” motion in bad faith. Suggesting that Judge Vinson needs to give further effect to his order is an insult to the judiciary’s role in our republic, and the court will almost certainly reject the motion.

The Administration’s memorandum filed with the district court is a study in creative writing for a broader political audience. In my humble experience, it is not the kind of legal argument any serious litigator would want to file in court, because it toys with Judge Vinson’s very kind way of putting his prior judgment and effectively taunts him that he couldn’t possibly have understood the enormity of what he was doing or meant that his judgment would be given effect anytime soon. The Memorandum in support of the motion is couched in very polite language (for a more general audience), but its meaning is startling for those who understand that the Rule of Law requires a losing party to abide by a court’s ruling pending appeal unless it actually seeks and obtains a stay of the mandate.

The Administration’s motion and memorandum essentially say that it will not abide by the ruling unless the judge tells them a second time he really meant to issue a binding judgment. The memorandum provides in pertinent part:

“Defendants will appeal both the Court’s judgment and the rulings that underlie it. This motion respectfully asks the Court to clarify the scope of this order, in particular that its declaratory judgment does not relieve the parties to this case of any obligations or deny them any rights under the Affordable Care Act while the judgment is the subject of appellate review, or, if the Court anticipated otherwise, to address specifically what the Court intends the parties’ obligations and rights to be under the judgment while appellate review is pending. . . . [Memo, page 2]

“Given (a) the wide-ranging and indeterminate consequences that would occur if the declaratory judgment were assumed to have immediate injunction-like effect; (b) the Court’s acknowledgment that it was deviating from the ‘normal rule’ of severability; (c) the concededly unique nature of the Court’s judgment, see, e.g., Op. 74 (‘This is not a situation that is likely to be repeated.’); and (d) the fact that the Court declined to impose an injunction, see Op. 75, defendants do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created by the ACA with regard to the plaintiff states, National Federation of Independent Business (‘NFIB’) members, and individual plaintiffs pending appeal, and defendants are proceeding on that basis.” . . . [Memo, p. 4]

“Defendants therefore respectfully request that the Court confirm that its declaratory judgment does not in itself automatically and in a self-executing manner relieve the parties of their obligations or rights under the Affordable Care Act while appellate review is pending.” . . . [Memo, p. 6]

“If the Court disagrees with defendants’ understanding and instead issues an order stating that it did, in fact, anticipate its judgment to have immediate injunction-like effect, defendants will consider how to respond pending appellate review, including whether to seek a stay pending appeal. Otherwise, defendants will proceed based on their understanding of the judgment as reflected above.” [Memo, p. 15]

Another question is why it took so long for the government with its legion of lawyers to file this shoddy, semi-insulting, political motion.

In reviewing the motion and supporting 16 pp. memorandum, I would have to guess the government spent more time war gaming the title, “Motion to Clarify,” and the PR phasing of its memorandum than on its legal argument. It is also possible the real lawyers in the room who had to sign the pleadings and who might later have to defend them put up a fight. We may never know the truth about the inner deliberations over these documents, but it suggests to me that Obama Administration increasingly realizes that its legal case is lost. It’s shifting resources from winning the case in the lower courts to winning the public relations game for the next year or two. In short, this motion has more value as a delaying tactic and to persuade those outside the normal litigation process that its 2-2 win/loss ratio is still relevant.