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Why health care ruling not a game-ender

By David Freeman Engstrom, Special to CNN
  • David Engstrom says some argue Monday's ruling voiding health law means game over
  • Not true, he says; judge found law unconstitutional, but didn't issue injunction to halt it
  • That's wise, he says; mandate starts in 2014, high court likely to hear case before then
  • Engstrom: Judge's ruling flawed, but restrained in not issuing injunction

Editor's note: David Freeman Engstrom is a law professor at Stanford Law School.

(CNN) -- The debate over the Patient Protection and Affordable Care Act once more reached a fever pitch on Monday when U.S. District Judge Roger Vinson issued an order declaring the law unconstitutional.

In baseball terms, the game is now tied at two runs apiece, with a pair of trial court rulings in favor and a pair against. But Vinson's ruling was more forceful than the earlier court ruling that found a constitutional violation: Vinson's declared the act void in its entirety. And this has some people arguing it is a game-ending home run, requiring the Obama administration to halt implementation immediately.

In this view, Vinson's sweeping ruling means the law is, in the words of David Rivkin -- the attorney and former Justice Department official representing the 26 states challenging the law -- "dead" throughout much of the country.

That's not the case -- and Rivkin should know better. The fact that the court only "declared" the act unconstitutional is, legally speaking, highly relevant here. In entering judgment this way, Vinson expressly refused to enter an injunction -- that is, he declined to command the Obama administration to take any particular action.

Health ruling respects limits on government

And while Vinson vaguely suggested that the government should nonetheless heed his decision, his own choice of declaratory relief plainly deprives him of the ability to use his contempt power to punish the government, should it choose to ignore his ruling, pending review by higher courts. In the simplest terms, the court tied its own hands.

This is as it should be. The main constitutional harm alleged in the various lawsuits stems from the so-called individual mandate: the requirement that individuals either purchase health insurance under the law's "minimum coverage" provision or pay a fine to the government. But that mandate isn't slated to go into effect until 2014.

Absent some unforeseen procedural wrangling, the issue will reach the Supreme Court well before then, providing a definitive judicial ruling before any citizen writes a check to a health insurer or incurs a fine.

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More importantly, halting implementation would make no sense in a democracy like ours.

Conservatives have long decried an imperial judiciary engaged in undemocratic acts of judicial activism. For a single district court to freeze implementation of one of the most significant (for good or ill) new laws in decades -- particularly when other, similarly situated courts have disagreed, and when the legislation itself retains the support of the democratically elected Senate and president -- would be activism on a breathtaking scale.

While we can never know for sure what goes on inside the minds of judges adjudicating difficult cases, Vinson's decision to forgo use of his injunctive authority can and should be viewed, in my opinion, as an admirable act of judicial restraint.

The recent tragedy in Arizona has spurred a much-needed national conversation about the tone of political debate, and that conversation is no less relevant to legal matters. Many within the legal profession have noted declining civility among practicing lawyers.

Continuing controversy over judicial nominations at the federal level and increasingly contested judicial elections at the state level raise very real concerns about an overly politicized judiciary. It hasn't helped that all four judges who have thus far ruled on the health care law fall out so neatly along partisan lines.

As a lawyer and law professor, I don't agree with Vinson's ruling. His order piles legal error atop legal error, and I find his analysis of the Constitution's "Necessary and Proper" clause muddled and, at times, incoherent.

But I agree with his decision to "declare" rather than "enjoin."

Perhaps Vinson, like me, realizes that the constitutional litigation regarding the health care law is still very much in the early innings. More district courts will step up to the plate in the coming months.

We would do well as a nation to allow the litigants and courts the time and space necessary to ensure a full ventilation of the relevant legal and factual questions before the lower courts and then the Supreme Court.

Vinson's otherwise flawed opinion does precisely that.

The opinions expressed in this commentary are solely those of David Engstrom.