Legal Commentary

Judge Vinson?s New Order in the Mandate Litigation

By Orin Kerr

When Judge Vinson entered his ruling holding that the mandate was unconstitutional, it left the federal government in a somewhat uncertain position. Given that the mandate was subject to inconsistent decisions by district courts, and Judge Vinson declined to enter an injunction, it wasn?t clear what DOJ was supposed to do while the inevitable appeals were pending. If Judge Vinson had enjoined the Act, DOJ would have obtained a stay from the Court of Appeals while the appellate process was pending. But without an injunction, it wasn?t entirely clear if there was an actual order that needed to be stayed. In response to the uncertainty, DOJ filed a motion seeking clarification of Judge Vinson?s initial order so DOJ could know what to do next.

Judge Vinson filed a 20-page opinion today responding to the motion seeking clarification, and I find it pretty remarkable. I think it?s fair to say that Judge Vinson was not happy with DOJ. First, much of the new opinion is written as a rather defensive summary of his earlier opinion and, at times, a response to critics. Vinson then decided on his own to treat the motion for clarification as a motion for a stay, and then he granted his motion for a stay with an important condition: DOJ must file its appeal in seven days, and DOJ must then request an expedited appeal in the circuit court. This seems pretty unusual to me, given that DOJ wasn?t even seeking a stay from Judge Vinson. The pace of appellate litigation is normally up to the Federal Rules of Appellate Procedure, the litigants, and the Court of Appeals judges ? not a district court judge.

One question for appellate procedure experts: If you?re DOJ, and you want to proceed at the usual pace of litigation rather than follow Judge Vinson?s order to file soon and seek an expedited review, what can you do? Do you have to wait seven days, let the stay order lapse, then immediately seek a stay in the Court of Appeals? Or can you go to the Court of Appeals now and seek an amendment to the stay order?

UPDATE: According to this story, DOJ is willing to abide by the 7 day deadline Vinson imposed, so my hypotheticals above may be only of academic interest. And commenter Joe has a pretty good explanation of why: After DOJ complies with Vinson?s order, the case will be in the Court of Appeals and Judge Vinson won?t have any control over the pace of the case. Sounds sensible.

Full post as published by The Volokh Conspiracy on March 03, 2011 (boomark / email).