After weeks of delay, the Obama Administration finally went ahead and did it. Early Tuesday night, the Department of Justice filed a notice of appeal in Florida v. HHS, the multi-state lawsuit that has the best chance of striking down Obamacare. This is a routine filing with the district court, but it is a necessary step in the march to the Supreme Court.
But there’s a small nugget of news buried in the filing for those who have been following the case closely: the filing is two days early! That isn’t much, but it is a conspicuous change of pace for the Obama Administration, which has attempted to delay this litigation at every turn, and with highly questionable legal tactics. The administration’s goal is to buy time to build up the edifice of Obamacare so that, even if the courts do strike down the individual mandate, the Supremes will allow the rest to stand. That strategy may now be unraveling.
The administration’s most notable effort to drag out the litigation came earlier this month in a bogus “motion to clarify” Judge Roger Vinson’s decision, which held that the individual mandate was unconstitutional and struck down the whole law. As Hans von Spakovsky and I explained last Thursday, that strategy backfired spectacularly with a stunning and deserved rebuke from the district court. As Judge Vinson explained in his order last week, the court expected that DOJ would rush to stay the court’s order and then file an immediate appeal. But, the Judge wrote, “It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to “‘clarify.’” The Administration, he concluded, was just playing games.
To get things moving, Judge Vinson gave the government an ultimatum: appeal within a week and seek expedited briefing in the appellate courts (either the Eleventh Circuit or the Supreme Court), or the implementation of Obamacare will come to an immediate halt. Wisely, DOJ took the judge at his word—this time—and filed its notice of appeal.
But will DOJ take the next required step and ask the appeals court for an expedited schedule going forward? Until tonight, it seemed like the government would wait out every deadline to the last possible moment. Now, however, DOJ may have come to the realization that the courts have seen through its strategy, and further delay will prejudice the next level of judges further.
So here’s to hoping that DOJ has changed its ways. And even if not, we can thank Judge Vinson for putting the appeals court on notice so that it won’t put up with any attempt to do an end run around the judicial process and, ultimately, the Constitution.