If the Supreme Court decides to strike down a key plank of the Affordable Care Act, is there a way to salvage the law?
William Baude, the distinguished University of Chicago Law professor, says there is. In a New York Times op-ed earlier this week, he argued that President Obama could unilaterally mitigate any negative consequences — including kicking millions of people off health insurance — should the Supreme Court rule in King v. Burwell that the majority of health insurance exchanges established by the federal government cannot offer subsidies to purchasers.
His idea has more historical and theoretical justification than you might expect. But it involves actions that Obama won't and shouldn't do — and wouldn't work if he tried them.
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Baude's argument is that Obama can keep the subsidies flowing without directly nullifying an unfavorable Supreme Court ruling. Obama can concede that the ruling is binding — as far as the four plaintiffs are concerned. But he would order the IRS to act according to the administration's best understanding of the law as far as everyone else is concerned.
Normally, this wouldn't work, because lower courts would apply the ruling universally in subsequent lawsuits. But in this case, Baude maintains, "[m]ost people who receive tax credits will never sue to challenge them." So most people would remain eligible for tax subsidies from federal exchanges as long as Obama is willing to act.
Supporters of the ACA will probably be suspicious that there's a hidden agenda at work here. Republicans have been frantically trying to claim that a ruling against the government would be no big deal. Indeed, House Republicans have tried to argue that the administration must have some secret contingency plan in case the Supreme Court wrecks most of the exchanges.
The reasons for this are obvious: Republicans both want to reassure the court that it won't have blood on its hands if it votes against the ACA, and evade responsibility for the chaos that would surely ensue. Coincidentally or not, Baude is a former clerk for Chief Justice John Roberts, and it's hard to avoid the conclusion that the op-ed is part of this campaign. Subtext becomes text in the concluding paragraph, when Baude asserts that the Obama administration "will deserve a share of its own blame" if it doesn't take his approach.
Still, almost everyone writing about the case has their own substantive and political views about the merits of the ACA and the lawsuits against it. What matters is not Baude's motivation, but whether he's right. Could Obama get around a ruling against the government? Not really.
Baude's idea does have real historical roots. Departmentalism — the idea that all three coordinate branches are obligated to interpret the law independently, and judicial interpretations of the law are not supreme — has had any number of prominent adherents. An excellent recent book by the Princeton political scientist Keith Whittington offers a detailed history of presidents chafing against judicial authority.
The most favorable historical analogy for Baude's argument would be Abraham Lincoln's response to Dred Scott. Lincoln argued that the court's infamous 1857 ruling that Congress could not ban slavery in the territories, and that blacks were by definition not American citizens, was binding on the parties to the suit, but not as a constitutional rule. These weren't just empty words, either. When he became president, Lincoln pointedly ignored Dred Scott, signing legislation banning slavery in the territories and ordering his attorney general to issue passports to free blacks.
But as a justification for Obama evading a bad ruling in King v. Burwell, Lincoln's actions don't get you very far. Everything about Dred Scott was unusual, and actions that are justified in fighting a moral evil on the scale of chattel slavery are not necessarily justified in other contexts. If Obama is within his rights to largely ignore a ruling concerning tax credits, what would happen if the Supreme Court ruled that bans on same-sex marriages are unconstitutional? Would judges in Alabama be justified in making each and every same-sex couple sue to get their marriages recognized? Strong departmentalist arguments have fallen out of favor for good reason.
And even if Baude's idea is justified in theory, it wouldn't work. "Every individual, business, or state with standing who wants to get the subsidies enjoined with regard to that individual, business's workers, or state's residents will be entitled to such an injunction," Samuel Bagenstos of the University of Michigan Law School told me. "At that point, the subsidy regime would become such a checkerboard that the federal government couldn't administer it."
The point about the ability of states to sue is particularly crucial. Most of the states with federally established exchanges are governed by Republicans who are extremely hostile to the Affordable Care Act, and will be willing to go to court even if most of their citizens would just as soon keep their subsidy. Baude might argue that states will not be able to get the standing to sue, but this is extremely implausible. If the Obama administration tries to bypass a Supreme Court decision, a majority of the court is going to be very generous in determining a plaintiff's standing to sue so that its ruling can be effectively enforced.
Following Baude's advice, in other words, would be a disaster. The end result would be the same — state governments that don't like the ACA would have non-functional exchanges. Only the Obama administration will have undermined the ACA, not to mention the Democratic candidate in 2016, by defying the court.
Unfortunately, the Obama administration cannot act to prevent an unfavorable ruling in King. And Republicans won't be able to escape responsibility for the consequences.
