An unusual argument has arisen as a way to save Obamacare. Today, a New York Times op-ed written by law professor William Baude suggests that the Obama administration could just ignore the Supreme Court if it decides in King v. Burwell that subsidies don’t apply to insurance coverage from federal exchanges.
Professor Baude raises this approach because the administration has zero lawful ideas about how to rehabilitate Obamacare if the Supreme Court decides that only state exchange plans get subsidies. So Professor Baude has offered up a quick fix: “If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment–but only with respect to the four plaintiffs who brought the suit.” Professor Baude points out that courts only have formal power to order a remedy for the plaintiffs in that particular lawsuit. Therefore, he writes, the administration is “free to follow its own honest judgment about what the law requires.” Of course, lower courts will be bound by the Supreme Court’s interpretation of Obamacare, so if anyone else drags the administration to court on the issue, the feds will have to bow to Supreme Court precedent. But, says Baude, everyone is so thrilled about tax subsidies that no one will bother to challenge the government’s illegal actions.
Let’s hope Obamacare supporters won’t sacrifice the rule of law in order to thrust the Affordable Care Act upon an unwilling public. After all, if Obamacare really enjoyed broad public support, the solution to a Supreme Court ruling that gutted subsidies for federal exchanges would be simple: amend the law. But apparently Professor Baude thinks that Obamacare is so unpopular that if the Supreme Court rules against the feds, the law cannot be saved in a legal or democratic way. I’m with him there. But it seems shocking to counsel the administration to defy the Supreme Court to revive a law that most Americans oppose. I side with John Adams, who believed that he and the other founding fathers had created “a government of laws, and not of men.” I also believe in the seminal Supreme Court case that declared, “It is emphatically the province and duty of the judicial department to say what the law is.” America deserves an executive branch that honors this basic notion of separated powers.
But I doubt Professor Baude’s plan would work anyway. If the Obama administration decides to take the low road and ignore a court decision it doesn’t like, I anticipate that many willing plaintiffs would file suit to force the administration to follow the law. Even Obamacare supporters probably would not take well to a lawless executive. If the administration loses King and takes Baude’s advice, we’d witness the spectacle of courts across the country repeatedly smacking down the federal government. In addition to being fun to watch, that would be a ringing validation that we are indeed a government of laws, and not of men. And our President is most certainly a man.