MARTIN: Not Above the Law

Published March 9, 2011

The legal immorality of the Obama administration and its Department of Justice now stands fully exposed. And even some lawyers are shocked.

To be sure, many people think lawyers are unethical. Otherwise, there wouldn’t be the joke that goes: “What’s the difference between a carp and a lawyer?” Answer: “One’s a scum-sucking bottom feeder, the other’s just a fish.”

But lawyers are officers of the court, meaning they owe the institution a duty of candor. So it’s unethical – even scandalous – for a lawyer to promise a judge he will obey a particular court order and then turn around and immediately violate it. Yet that’s exactly what President Obama’s Department of Justice did in the Florida federal district court case involving the constitutionality of Obamacare.

In January, the plaintiffs in this case – more than two-dozen states and other parties – won a “declaratory judgment” from Florida Judge Roger Vinson that Obamacare is unconstitutional. A declaratory judgment is “the functional equivalent of an injunction,” as Judge Vinson noted in a later opinion. It’s a binding order requiring a party to do or refrain from doing some particular act.

In the proceedings prior to January, the Justice Department had acknowledged to Judge Vinson in writing the equivalence of these two remedies and had “specifically insisted that they would honor” (in Judge Vinson’s words) the declaratory judgment as an injunction – meaning they promised the court they wouldn’t enforce the health care law.

But mere hours after Judge Vinson’s opinion was issued, the Justice Department broke its word and announced that it would ignore the court order and continue to enforce Obamacare.

That breach of promise led to further proceedings before Judge Vinson. This time, the government told Judge Vinson it didn’t have to obey his order because two cases said the order was stayed and ineffective pending appellate review. The Justice Department cited two cases supposedly supporting this claim.

On March 4, Judge Vinson found that these two cases did not support the government’s position and, in fact, contradicted it. The government’s legal scholarship, the judge wrote, “is manifestly incorrect and inconsistent with well established statutory and case law.” That means, in non-lawyerspeak, the government lied about the law and the judge’s decision is not stayed.

Because the government motion also had the effect of delaying final resolution of the case, the judge gave the government a week to appeal his January decision. For seven days, states must continue preparing to enforce Obamacare. But if no appeal is filed by then, states can stop complying.

Despite his polite language, it’s clear that the judge is furious with the government lawyers. And he’s not the only judge who feels this way about Mr. Obama’s Justice Department.

After the oil spill in the Gulf of Mexico in April, Interior Secretary Kenneth Salazar imposed a moratorium on issuance of further deep-water oil-drilling permits. In June, Louisiana Federal Judge Martin Feldman declared the moratorium invalid and ordered Interior to begin issuing permits.

Mr. Salazar responded to this order by issuing a second, identical moratorium. This one expired in October. Since the expiration, Interior still had not issued any deep-water drilling permits. The usual time for issuance of such permits is two weeks, Judge Feldman found.

Upon being hauled back into court, Mr. Obama’s attorneys told the judge that the Interior Department had the power to put a de facto moratorium in place by taking all the time it desired to issue permits.

In February, Judge Feldman said the government was required to issue permits in a “reasonable time” and was engaged in “determined disregard” of his prior order by stalling indefinitely. Meanwhile, the Mideast roils and the United States is being deprived of much-needed oil. The situation is serious enough that the Obama administration is considering releasing oil from the government’s emergency reserve. That hasn’t happened since Hurricane Katrina in 2005.

The government first publicly announced it would abide by Judge Feldman’s order, but still no drilling permits were released. Finally, on Feb. 28, one was issued, allowing an energy firm to resume drilling a well where work was halted by the moratorium. But on Friday, Obama attorneys filed an appeal.

Parties who fail to obey court orders usually are required to pay financial sanctions, in part to compensate the opposing side for the costs of repeated trips to court. The party involved here – the government, meaning us taxpayers – usually would pay these costs. But courts have the power to order individual lawyers to pay the fines in appropriate circumstances.

Given that Mr. Obama and Attorney General Eric H. Holder Jr. are the ones who are acting as if they’re above the law, the courts ought to show them they are not and order them to pay up. Personally.

Maureen Martin is a legal affairs fellow at the Heartland Institute.