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Saturday, December 15, 2018

A quick word on the remedy in the ACA case (Updated)

Sam Bray (as always) beat me to exploring the remedy issues in the district court's declaration on the constitutional invalidity of all of DACA. The court declared ACA invalid in its entirety, but declined to issue an injunction and provided only a declaratory judgment. Here is the wind-up to the post, with which I entirely concur.

In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. *

I also want to flag this language from Marty Lederman's post: "[C]ontrary to almost every media account you've read in the past few hours (come on, New York Times!) Judge O'Connor did not "strike down" the "entire Affordable Care Act" (something he lacks the power to do, in any event) . . ." A federal court cannot erase or eliminate or remove a statute, so it would be wonderful if that term could be removed from the lexicon.

Update: The other procedural/remedial issue is what happens next. The court granted what it called partial summary judgment on one claim (or one issue in one claim) and entered a declaratory judgment, but no injunction (although that is what the first count of the complaint requested). But it is not clear what is appealable here and how. There is no injunction, so § 1292(a) is not in play. Section 2201 says a "declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such," but the view among limited cases is that this assumes the decision is otherwise-final in the sense of disassociating the district court from the case and leaving it nothing to do but execute the judgment. With other claims remaining in the case, this D/J is not final. An appeal would seem to require certification under § 1292(b) or Rule 54(b).

Then there is a question of who can appeal. The United States agrees with the plaintiff states' basic constitutional argument about the zeroed-out penalty and that some provisions are not severable, so it is unlikely to appeal that; it disagrees with severability as to the rest of ACA, so it may appeal that. But what about the core constitutional issues? States were allowed to intervene to defend the parts of the law that DOJ would not, but under Hollingsworth an intervenor that would not be subject to the force of the order would not have standing to appeal. The House likely will intervene come January 3 and would have standing under Windsor, but that would be too late to appeal for § 1292(b), which requires appeal within ten days of certification. Maybe DOJ will appeal the declaration as a whole, then limit its legal arguments, with the states again intervening in the Fifth Circuit to pick up the slack.

Posted by Howard Wasserman on December 15, 2018 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


The House is not a party or intervenor at this time, so it cannot appeal. It will not become one until January 3 (when the new Democratic majority takes over). At that point, the House could intervene and, under Windsor, have standing to appeal. But if the certiifcation is granted before December 21, the ten-day period for § 1292(b) appeal will have lapsed before the House can get into the case.

Posted by: Howard Wasserman | Dec 16, 2018 8:39:34 PM

Sorry, I'm not an attorney, so some clarification would be helpful.
Howard, are you concluding that the House would be time-barred from filing an appeal due to (1) 10-day clock; (2) the House was not party to the original litigation and therefore may not have standing?

Posted by: Paul Sonnenfeld | Dec 16, 2018 8:25:25 PM

Interesting and pretty complicated right now . But , what renders a National or federal remedy as such , is not necessarily the title : National , or : Nationwide , or : Universal , but , the effective meaning of the relief or the ruling . In such case , if it is , a federal law or statute , and declared as invalid , it doesn't matter no more , who are further the litigants or whatsoever . Not only because it is federal , and touches the whole nation typically , but the wording of Article III ( we tend to ignore ) :

The judicial power shall extend to all cases, in law and equity, arising under this Constitution.....

Arising under this constitution , that is to say , what touches the constitution , not only parties . Otherwise , what seems to be the point of federal issue ?? What seems to be the point of precedent ?? The point must be , that , from here and on , without reaching the court , if a current case is similar to the precedent , it is guiding and binding . So , by nature , not only parties touching the case that has been ruled .

So, it is the nature of the remedy , not the title . If it is federal law , must touches , the whole nation typically ( unless exempted by the court for specific reasons and circumstances ) .

And , one must differentiate , between erasing the law from national register ( repealed by another law , legislated and enacted by the law maker ) and , what the court typically does , and it is , to declare the non validity of it . But , if the court finds fit , it can issue an order , to also erase it from books of law . But , typically , this is not what courts do .


Posted by: El roam | Dec 15, 2018 5:41:56 PM

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