December 16, 2010

"[W]hat Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant."

From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):
The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.
Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.
[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?

The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.

***

This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.

Who needs technical law when you can do atmospheric law?

25 comments:

Alex said...

Frist! No doubt Hen House will dismiss this thread as more "red meat for Althouse hillbillies".

traditionalguy said...

Very funny Professor. Are you serious? If Miasma law is the new trend of law to practice, then we need more stand up comics/carnival barkers trained for the legal profession.

Saint Croix said...

Well, it's only "irrelevant" because a district judge has ruled it unconstitutional already.

Paul Zrimsek said...

Pretty good news, actually. Judge Walker of Prop 8 fame is a district judge.

Hagar said...

Well, "miasma" and "penumbra" at least partially overlap.


Wv: Ingly - not quite tingly (as up Chris Matthew's leg).

Skyler said...

Just because the writer was cynical doesn't mean he wasn't accurate.

That's the sad state of law in this country. It seems that only law professors still have on rose colored glasses to pretend otherwise.

All of law school is one desperate attempt to justify one whimsical judicial decision after another.

Martin L. Shoemaker said...

This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.

That was pretty much the way the second amendment was approached through the 70s and 80s, wasn't it? "No serious thinker believes it applies to individuals."

Have these brilliant thinkers not heard of the No True Scotsman fallacy?

JAL said...

As I mentioned a couple threads ago, the 2000 election opened my eyes to the significnce of "the rule of law."

In post- modern America, incarnated in lefties, words no longer have meaning, so neither does what a judge rules.

The end of this chapter, if there is not additional plot shifting and character changes does not bode well for humans and other living things.

rdkraus said...

As a technical legal matter, it might become relevant if the Judge issues a nationwide preliminary injunction.

And, if key aspects of the law are clearly and convincingly unconstitutional, why shouldn't he do that?

John Burgess said...

Wouldn't it be amusing if the USSC declined to hear the appeal on VA's (and presumptively, FL's) rulings?

That's show what power an appellate court has!

MPorcius said...

You don't really think there is any chance some 200 year old piece of paper is going to stop the first black president from achieving his goals, do you?

Bill Kilgore said...

I hope the smart lady corrects me if I am in error, but Kagan may recuse herself if the matter makes it to the Supremes. And, failing that, you might get an "even" decision just the same. Such might leave the lower court ruling(s) undisturbed.

That's not the likely scenario, and the appeals level can change the calculus again, but I feel fairly comfortable asserting that the "irrelevant" claim is, as a technical legal matter, bullshit.

cubanbob said...

"The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo."

20 State Attorneys General jointly filing suit is as a technical legal matter irrelevant. Add Virginia in to the mix and 21 states are opposed to this bill and this fool thinks its but a irrelevant technical matter?

mariner said...

Who needs law at all, when you have political power and the will to use it?

Remember the takeover of GM, and The Zero's blatant disregard of Federal bankruptcy law?

SteveR said...

I tend to vote based on a candidate's promise not to appoint judges who are inclined to judicial atmospherics. I hate it when they make stuff up out of thin air.

TMink said...

These folks don't need no stinking constitution.

Trey

Lucien said...

Since this IS certain to be appealed either way, and since summary judgments get de novo review, and since judgments will be affirmed on any valid rationale, whether the trial court relied on it or not, there is a very real chance that by the time all is said and done, the opinion of the District Judge may not amount to a hill of beans.

On the other hand, if the judge wirtes a persuasive opinion, it could be important in shaping later appellate opinions. Also, evidentiary rulings,which may or may not be significant in this case, will likely be reviewed for abuse of discretion.

Methadras said...

Why don't we just start calling it mock law? Hell, the only distinction between law/order anarchy/chaos at this point, and probably at any other point, is that you enough people who believe that order must reign supreme and will send out their order enforcers to maintain that order so anarchy/chaos don't take root. The law at this point is a thinly veiled wall and more people are crossing through it because they see this government imposing it's own order onto us which we believe is chaotic.

MikeR said...

Though I see your point, Ann, practically speaking the man is right. Since we all know that the case is going to the Supreme Court, can't they just send it there to start with? Probably they can't, but it would save time.

lucid said...

Yes Ann. For a long time now, the left (mostly) have attempted to argue by devaluing and delegitimizing their opponents. It has been an effective strategy for them. They make people afraid to disagree openly with lefty positions.

Richard Dolan said...

"[W]hat Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo."

That's a strange view of things. De novo review does not mean, as a 'technical legal matter' or otherwise, that what the district court decides is 'irrelevant' even if it is clearly not the final word. (The availability of appellate review always means it is never the final word.) Yet the reality is that the vast majority of appeals to the circuit courts result in an affirmance, whether the lower court is reviewed under a de novo, abuse of discretion, or clear error standard.

A lot will depend on the kind of opinion (carefully reasoned or not, close parsing of relevant precedents or not, etc.) that the district judge writes, how the district judge is viewed by his circuit (strong and careful judge or the opposite), who the panel members from the circuit court are on the appeal (judges who respect the district judge, etc.), to mention just a few factors that will come into play.

It is also true that these Obamacare cases are far from the routine work of the judiciary. That is likely to make the process of appellate decisionmaking more complicated, not less, and is a reason to expect that the district court's decision (whatever it is) will take on a force of its own (that's already happened with Judge Hudson's decision) that will have to be reckoned with. It may not control the ultimate result, but it will be far from 'irrelevant' in any sense.

Bruce Hayden said...

I don't think that the case is irrelevant. Maybe not as important as if Judge Hudson had already ruled against the mandate. 20 states are involved here, which is 40% of all the states in the union. This is possibly the most political of the District Court cases for that reason.

One thing that a District Court can bring to this, and Judge Hudson did so, is introducing new theories. The 4th Circuit is not going to ignore his activity/non-activity argument. They will have to either address it, or affirm on other grounds. And that means that it will get to the Supreme Court (assuming Cert is granted).

And David Bernstein over at volokh.com today has posited that what that activity/non-activity distinction does is give the conservative majority in the Supreme Court legal cover for doing what they would seemingly like to do, which is to rein in Commerce Clause (and maybe Necessary and Proper) federal power expansion.

It is harder to get this sort of stuff in, absent some lower court judge ruling on it. Yes, the higher courts can view these issues de novo. But that means finding it in one of the innumerable amici briefs that will be filed.

Besides, one of the easiest ways to get Cert is to have a circuit split, and you can't have a circuit split if you don't have at least two district courts involved. Even better when you have a lot of them. Imagine for a moment, the penalty being enforceable against residents of the 9th Circuit, but not the 4th or 11th Circuits. The IRS would earn every penny of all that extra money they are getting to enforce it.

kurt said...

Similar to the "you can't be serious" argument is trying to move the goal posts by claiming Judge Vinson's holding is outside the bounds of polite conversation. This tack is taken in an op-ed in today's Chicago Tribune by Prof. Koppelman of Northwestern. He variously calls the ruling bizarre and sabotage. I can only assume he is fantasizing that Justice Kennedy will read his piece and will and be moved by his blather. Here's the link:

http://www.chicagotribune.com/news/opinion/ct-oped-1216-health-20101216,0,4263202.story

M. Simon said...

Ah. Support for common law.

jcr said...

Say Anne, did you know that there's an ad for PETA showing up on your blog? Might want to look into that.