Friday, March 11, 2011

Happy 24th Anniversary

Jawbitch and I celebrated our 24th wedding anniversary with the kids at Teller's - An American Chophouse.

G-man (standing up in the middle of the crowded restaurant on Friday evening): They say that what happens in Vegas, stays in Vegas, but there are exceptions. 24 years ago, I ran away with this girl and got married in the Little Chapel of the West, and I'm still craaaazzzzyyyy about her. So, I propose a toast: To love and future, may you all have plenty of both.

Everybody clapped.

AP public sector unions - a civil right?

What about all citizens' civil right to keep their money from being taxed instead of giving it to public sector employees' grossly inflated pensions and medical care?

http://www.google.com/hostednews/ap/article/ALeqM5hWVTLq_J6-wOk4LmUmb8xEvi4ZXA?docId=ec23f0df64c04adf8ebb4885626dedc2

Friday, March 04, 2011

Judge Vinson's Stay

By the media spouting off, see, e.g., here, one would think Obama's legal team won a huge victory with Judge Vinson's stay of his own order (putting aside the fact that it is only for a week). But then you read the actual decision:

So to “clarify” my order and judgment: The individual mandate was declared unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. 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 defendants have suggested, for example, that my order and judgment could not have been intended to have the full force of an injunction because, if I had so intended, I would have been “required to apply the familiar four-factor test” to determine if injunctive relief was appropriate. …


I did not undertake this four-factor analysis for a simple reason: it was not necessary. Even though the defendants had technically disputed that the plaintiffs could satisfy those four factors, the defendants had acknowledged in their summary judgment opposition brief that, if I were to find for the plaintiffs, separate injunctive relief would be superfluous and unnecessary. The defendants expressly assured the court that, in light of the “long-standing presumption that a declaratory judgment provides adequate relief as against an executive officer, as it will not be presumed that that officer will ignore the judgment of the Court,” any declaratory judgment in the plaintiffs’ favor “would [ ] be adequate to vindicate [the plaintiffs’] claims.” Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for summary Judgment (doc. 137), at 43. Consequently, there was no need to discuss and apply the four-factor test to determine if injunctive relief was appropriate because the defendants had confirmed that they would “not . . . ignore the judgment of the Court” and that my “declaratory judgment would [ ] be adequate.” In other words, the defendants are now claiming that it is somehow confusing that I bypassed the four-factor test and applied the “long-standing presumption” that they themselves had identified and specifically insisted that they would honor."

G-man