David Rivkin on “The Mark Levin Show”

Below are key soundbites from Monday’s interview on The Mark Levin Show (2/1/2011) on Judge Roger Vinson’s ruling in the Florida and 26-state healthcare lawsuit.

(1:35 – 3:28)
Levin: And [Judge Vinson] did one other thing on page 75, didn’t he? He said, this is declaratory opinion, it’s unconstitutional, I don’t have to deal with this injunction stuff, I assume the government understands what I’m saying — I’m paraphrasing — this is unconstitutional.

Rivkin: That is correct.

Levin: To your knowledge, has the Justice Department sought a stay of this decision with the circuit court yet?

Rivkin: No, not yet, and you’re absolutely right. They would have to go first file a notice of appeal in the 11th Circuit and then move to stay this judgment. They have not done that yet. I would certainly expect them to do so expeditiously…. Statements from the White House have been to the effect that “we don’t think this changes anything.” And of course, as you know, if the previous administration had taken this position in any of the lawsuits brought against them, they would’ve had mainstream media screaming from rooftops.

Levin: Yes, because you cannot defy a federal court like this.

Rivkin: That is absolutely correct. We have a final judgment, and as far as the parties of the case are concerned — it’s important to underscore — this does not prevent the government from implementing the [Affordable Care] Act in all 50 states. But as far as the 26 plaintiff states that are parties to this case, they absolutely cannot enforce it against us. And they know it. As you well know from your days at the [Justice] Department this is not some kind of difficult legal question. This is very straightforward. The Administration has been engaging in a bit of political bravado I would call it.

What we have here is an executive branch that is not complying with a federal court….

(4:54 ff.)
Rivkin: …The judge did not grant injunctive relief, not because he felt we’re not entitled to it, but because he felt, “Well, dealing with the government, they would accord due respect to his final judgment.” It is troubling… If this was the Bush Administration and there was a lawsuit dealing with wireless surveillance or some other terror-related issue, the level of screaming in the media would have been deafening.

Levin: And yet there is no screaming in the media, except on talk radio that has been pointing this out now going on 36 hours. There’s no screaming in the mainstream media.

Rivkin: However you feel about this, it’s enormously unfortunate that you have political branches acting with such a disrespect toward the judiciary. We’re talking about the most fundamental form of disrespect…

I’m sure that the lawyers at the Justice Department are very keen to go and take the case up to the 11th Circuit. And the political masters are not very happy about it because to do so would acknowledge the magnitude of their defeat, so they’re procrastinating, not sure what to do.

There’s a number of unfortunate tendencies in this administration’s behavior when it comes to these lawsuits. They really have been playing fast and loose with things. They’ve been trying to go slow — as slowly as they can — with our lawsuit and with Virginia’s lawsuit. On the other hand, they’re willing to go very fast with lawsuits considered to be more beneficial to them… Typically the federal government does things a little bit better than that… So they’re not very keen to bring this to a definitive resolution.

The notion that you can just take out the individual mandate and leave the rest intact is not very credible.

Listen to the full podcast here: The Mark Levin Show


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