Block on Trump's Asylum Ban Upheld by Supreme Court
Last Tuesday, New York Times op-ed contributor and University of Chicago law professor William Baude floated a fantastic contingency plan in the event the Supreme Court strikes subsidies for residents of states without state health care exchanges.
If the Court affirms the (now-vacated) three-judge panel opinion of the D.C. Circuit, Baude said, the Obama Administration could just ignore it.
Yeah, not really, though. It's a lovely idea, but as Noah Feldman -- also a law professor -- wrote in the Chicago Tribune, it "is based on the kind of technicality that makes people hold their nose when they smell a lawyer coming," namely, the notion that Court orders bind only the parties to the suit and no one else.
"This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it," Baude wrote. "The administration would simply be refusing to extend the Supreme Court's reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue."
Cute, but lawyers know that if an argument seems to cute to be true, then it probably is. The Supreme Court, unlike trial courts or even courts of appeal, have the final say on what federal law is, period. If the Supreme Court were to say that states without state exchanges can't get subsidies, that decision would bind future lower federal courts, meaning all lawsuits on the subject would necessarily end the same way.
Baude also quoted Abraham Lincoln for the proposition that even Lincoln knew that Supreme Court decision bound only the litigants before it. But Lincoln is hardly a model constitutional scholar; after all, it was Lincoln who suspended the writ of habeas corpus in 1861, even though the Constitution grants the president exactly zero authority to do it. (The Emancipation Proclamation was also pushing it, constitutionally speaking.)
Political philosophers already wonder why people even adhere to Supreme Court orders in the first place. As a branch of government, it has probably the least legitimacy, as its members are appointed for life terms and have the power to affect people who weren't even born when they were appointed, meaning their grant of authority excludes at least an entire generation of Americans.
And yet, whenever the Supreme Court issues a ruling we disagree with, we grumble about it, but ultimately everyone goes along with it. Arkansas Governor Orval Faubus thought he shouldn't have to in 1957, but ultimately, President Eisenhower nationalized the Arkansas National Guard in order to enforce the Supreme Court's mandate that public schools could no longer be segregated. President Obama is, obviously, a universe away from Orval Faubus.