Blog

dis·in·gen·u·ous

Adjective /ˌdisinˈjenyo͞oəs

Synonyms:

adjective: insincere, false, devious, hollow-hearted

Not candid or sincere, typically by pretending that one knows less about something than one really does

This definition of the word “disingenuous” should be accompanied by a direct link to the Motion to Clarify the U.S. Justice Department recently sought from Judge Vinson in the attorneys general lawsuit that challenged the Constitutionality of the health insurance reform law.  Although they say a picture is worth a thousand words, the Justice Department’s words, contained in its Motion to Clarify and in the arguments it submitted to the court in support of that motion, could just be the exception to that rule.

If you recall, Judge Vinson decided the individual mandate contained in the health insurance reform law is unconstitutional and, because he considered it necessary to the remainder of the Act, he struck the entire law from the books.  In doing so, Judge Vinson stopped short of issuing an injunction, a formal order requiring the federal government to stop all efforts to implement the Act.  In Judge Vinson’s opinion, his order declaring the Act void was sufficient in light of “a long-standing presumption ‘that officials of the Executive Branch will adhere to the law declared by the court.’”  He further noted there was “no reason to conclude that this presumption should not apply here.”

Imagine Judge Vinson’s surprise when, the same day his decision was issued, senior White House officials said, “Implementation [of the health insurance reform law] will proceed apace.”   But several of the states whose attorneys general had originally initiated the lawsuit simultaneously announced they would not cooperate with the administration’s plan to go forward, relying upon Judge Vinson’s decision that the law is unconstitutional and, therefore, void.  (NOTE for future reference that Nebraska was NOT one of these states and ask yourself WHY NOT?  Inquiring minds SHOULD want to know.)

Time passed.  Although the Justice Department immediately said Judge Vinson’s order would be appealed, no appeal was filed and no stay of Judge Vinson’s order was sought.  A “stay” is just was it appears to be — a separate order, issued either by Judge Vinson or by the appellate court, maintaining the status quo while the parties pursue their appeal.  Without either of those — the appeal or the motion for a stay — Judge Vinson’s order was in effect and was binding upon the parties.  As it had indicated in the aftermath of the decision, the federal government continued to follow its timetable for implementation of the reform law.  But, because of the increasing number of states refusing to “play ball”, it became necessary for the federal government to do something in order to bring them back into line.

The federal government’s bright idea was to file a motion requesting Judge Vinson to “clarify” exactly what UNCONSTITUTIONAL  and VOID mean.  I’m sure the Justice Department lawyers thought they were being “ingenious” when they filed the motion, but Judge Vinson saw right through them and, in crafting his order on the government’s motion, he was so clear and sharp he cut right to the bone.

At one point, Judge Vinson describes the federal government’s “selective quotation” from the holdings in several cases in an effort to support its contention that it was free to ignore his ruling and proceed with implementation of the law as “bordering upon misrepresentation.”  It goes downhill from there.  An editorial published in the Wall Street Journal on March 7 summarizes it as follows:

“The Judge said the Administration is making bad-faith arguments that are ‘manifestly incorrect’ and contrary to the well-established legal precedents ‘that they themselves had identified and specifically insisted they would honor’ in earlier proceedings and motions. The transparent political goal is to string out the legal challenges as long as possible.

Therefore, Judge Vinson decided to treat the dilatory tactics as a motion for a stay, and granted it. But he also gave the Justice Department a mere seven days—that is, this Thursday—to file an appeal and required that it seek an expedited appellate review. He writes that ‘the battle lines have been drawn, the relevant case law marshaled, and the legal arguments refined.’ There is no reason for further delay.

Along the way, Judge Vinson argues that the Administration’s case depends on ‘stretching existing Supreme Court precedent’ about the reach of the Commerce Clause ‘well beyond its current high water mark and further away from the ‘first principles’ that underlie our entire federalist system. . . . It is not for a lower court to expand upon Supreme Court jurisprudence, and in the process authorize the exercise of ‘highly attractive power’ that Congress has never before claimed in the history of the country.’”

Judge Vinson’s “clarification” sort of brings home the lesson that you’d better be careful what you ask for, because you just might get it!  It’s probably busy over at the Justice Department.  God may have accomplished the miracle of creation in seven days, but the folks over at Justice are not divine, by any stretch of the imagination.  I have to wonder if Jackson Browne’s song resonates with them about now:  “Oh, won’t you stay just a little bit longer?  Please, please say, say you will!  Say you will!”