It is time to talk about President Obama’s contingency plan for health care. The Supreme Court heard oral arguments earlier this month in King v. Burwell, a case challenging the provision of tax credits on federal insurance exchanges. While the legal issues are dry lawyers’ fare — how to interpret several interconnected phrases of the Affordable Care Act — the practical stakes are high. The government estimates that millions of Americans will be left without affordable health insurance if it loses.
While the administration may well prevail, it has expressed remarkable pessimism about its options if it does lose. The secretary of health and human services, Sylvia Mathews Burwell, wrote to Congress last month about the administration’s lack of a contingency plan: “We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”
But luckily 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.
To be sure, the government almost always agrees to extend Supreme Court decisions to all similarly situated people. In most cases, it would be pointless to try to limit a decision to the parties to the lawsuit. Each new person who was denied the benefit of the ruling could bring his own lawsuit, and the courts would simply rule the same way. Trying to limit the decision to the parties to the suit would just delay the inevitable.
But the King litigation is different, because almost everybody who is eligible for the tax credits is more than happy to get them. Most people who receive tax credits will never sue to challenge them. Lawsuits can be brought only by those with a personal stake, so in most cases the tax credits will never come before a court. The administration is therefore free to follow its own honest judgment about what the law requires.
This idea may seem radical, but it has a strong legal pedigree. Judicial authority, or jurisdiction, is case-specific and person-specific. That is true even of the Supreme Court, which the Constitution gives “judicial power” to decide “cases” and “controversies.” It is reaffirmed by Marbury v. Madison (1803), which affirmed the power of judicial review by relying on the Supreme Court’s duty to decide “particular cases.”
President Obama could also take a page from President Lincoln. In his first inaugural address, Lincoln discussed a recent Supreme Court decision about slavery. He forswore “any assault upon the court,” but stressed that “the policy of the Government upon vital questions affecting the whole people” ought not be “irrevocably fixed” by a single suit brought by only a few. He said that Supreme Court opinions were thus “entitled to very high respect and consideration in all parallel cases” but were ultimately limited to “the parties to a suit as to the object of that suit.” If the Obama administration thinks the stakes are high enough, it can take the same path.
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SOURCE: N.Y. Times – William Baude