The always-interesting Will Baude has a provocative piece on King v. Burwell at the New York Times. As he sees it, the Obama administration has an ace up its sleeve when it comes to avoiding the fallout of an adverse decision.
[L]uckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: 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.
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. 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.
Will’s right on the narrow, technical legal point, as I explained in a post from last March. Under the Administrative Procedure Act, courts must “set aside” agency action that is “not in accordance with law.” The D.C. Circuit has construed that to mean that an unlawful rule is a legal nullity not just to the parties before the court, but to anyone and everyone in the country. The Supreme Court, however, has never endorsed that interpretation and it’s not obvious that it would.
It is inconceivable, however, that the Obama administration would confine the Supreme Court’s holding to the four plaintiffs. The problem is political, as Will appreciates. By limiting the Court’s decision, the administration would be bucking a tradition that venerates the Court as the supreme arbiter of statutory meaning. In our political culture, the President would pay a stiff political price—and even risk impeachment—for his perceived flouting of the Court. It’s just not a viable approach.
Will nonetheless closes by saying that the administration “will deserve a share of its own blame” if it declines to limit the Supreme Court’s judgment to the four plaintiffs. I don’t see why. President Obama isn’t to blame for the political culture that puts the approach out-of-bounds; he’s as beholden to that culture as the rest of us. Why should the president be criticized for declining to provoke a constitutional crisis?
That quibble notwithstanding, Will’s piece exemplifies how legal academics can, from time to time, unsettle even the most basic of assumptions about our legal system. The Supreme Court’s power to bind non-parties is a political convention. It’s not etched in stone. And it could be reconsidered.