Fla. AG says U.S. Government dragging its heels

By Jessica M. Karmasek | Feb 24, 2011


TALLAHASSEE, Fla. (Legal Newsline) - Florida Attorney General Pam Bondi, in a response in the multistate health care lawsuit, is calling the federal government's recent motion to clarify "an attempt to delay the process."

Bondi filed the 15-page response on Wednesday in opposition to the U.S. Department of Justice's motion, which was filed Feb. 17 on behalf of the Obama administration in response to U.S. District Judge Roger Vinson's Jan. 31 ruling that the new law is invalid.

The federal government contends that it must continue to implement the law even though it has been declared unconstitutional by Vinson.

Bondi's memorandum was filed on behalf of 26 states and the National Federation of Independent Business.

"(The) Department of Justice's motion to clarify is merely an attempt to delay the process when the order clearly required a halt to implementation. Judge Vinson's order is an injunction stopping the federal government from enforcing the Affordable Care Act on the 26 states," Bondi said in a statement.

"Our memorandum states that time is of the essence in this matter, and the Court should deny the defendants' motion for clarification as well as their thinly disguised request for a stay.

She continued, "Everyone knows this case will ultimately be decided by the U.S. Supreme Court, and the Department of Justice should join us in seeking an expedited appeals process. This issue is too important for delay, and we urge the President to file an appeal in the appropriate appellate court, as was done in Virginia and Michigan. It is in the country's best interest to present this case before the U.S. Supreme Court as soon as possible."

Karen Harned, executive director of the NFIB's Small Business Legal Center, said in a statement Wednesday that Vinson was "very clear" in his decision and that the government's motion asking for clarification "is nothing more than an attempt to ask Judge Vinson to stay his ruling."

Bondi, in her response, agreed.

"If the Government was not prepared to comply with the Court's judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify," the attorney general wrote. "Defendants' motion is, in fact, a transparent attempt, through the guise of seeking clarification, to obtain a stay pending appeal."

Harned contends the government's arguments do not meet the judicial standards required for securing a stay.

"Because Judge Vinson has properly recognized that 'time is of the essence' in this case -- which is of critical importance to small business and all Americans -- we are asking him to promptly deny this thinly veiled motion for a stay," Harned said. "That will allow the case to begin moving through the appellate process as fast as possible.

"Until the U.S. Supreme Court rules, small business owners and all Americans will be left questioning whether or not this law ultimately will stand."

On Feb. 18, Vinson issued an order that would give the 26 states suing President Barack Obama over his new health care law three business days to respond to the government's motion for clarity.

In its accompanying 17-page memorandum, the federal government wrote the court's declaratory judgment "potentially implicates hundreds of provisions of the (Patient Protection and Affordable Care) Act and, if it were interpreted to apply to programs currently in effect, duties currently in force, taxes currently being collected, and tax credits that may be owed at this time or in the near future, would create substantial uncertainty.

"Because of the sweeping nature of the declaratory judgment, such an interpretation would pose a risk of substantial disruption and hardship for those who rely on the provisions that have already been implemented."

On Jan. 31, Vinson released a 78-page decision that said the federal government is unfairly trying to regulate economic inactivity under the Commerce Clause of the U.S. Constitution. Vinson granted summary judgment on that issue to the 26 states that have challenged health care reform.

Twenty states, led by Florida, filed the lawsuit in March after Obama signed the legislation into law. Recently, six states joined the effort.

The states are challenging a $695 annual penalty that will be imposed on individuals who do not purchase health insurance. Virginia, in a separate lawsuit, is defending a state law that says none of its residents can be penalized for not purchasing health insurance.

Because the mandate is too integral a part to be separated, Vinson voided the entire legislation. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," he wrote.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

The federal government argues that Congress acted within its authority and that the mandate is vital to the success of the overall package.

In its Feb. 17 motion, it asks that the court "clarify the scope of its 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."

In Vinson's Feb. 18 order, he said that typically the plaintiffs would have 14 days in which to file a response to the defendants' motion. "However, because time is of the essence in this matter, and because everyone in this country would obviously benefit from certainty and final resolution of the case sooner rather than later, I do not think it necessary or appropriate to adhere to the briefing schedule that would normally apply."

Instead, the plaintiffs had three business days from the date of the order to file their response in opposition to the defendants' motion.

If the defendants wish to file a reply to that response, Vinson said, they shall also have three business days from the date the response is filed.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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