Would a “Chief Justice Roberts Has Made His Ruling, Now Let Him Enforce It?” Approach Work if the Court Goes the Full Moops?

You may have seen Will Baude’s op-ed arguing that Obama could just ignore a Supreme Court ruling that providing subsidies on the federally established exchanges for everyone but the four plaintiffs. You may have thought that it sounded like a #slatepitch with a suspicious agenda. If so, I think you were right:

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.

One additional point about Dred Scott is that everything about the case is highly atypical — I think we can be confident that it will be the only Supreme Court decision ever praised before it’s handed down in an inaugural address. It was the culmination of a long-term struggle to preserve the Jacksonian political order, which was dead as soon as South Carolina seceded — Democratic political elites wanted the Supreme Court to “settle” the question of slavery in the territories and it tried to. So using Lincoln’s ability to ignore Dred Scott as a precent for nullifying rulings in other contexts is rarely going to work.