In a provocative op-ed in the New York Times, University of Chicago law professor William Baude argues that the president has the power to sidestep the Supreme Court if it rules against him on Obamacare. In King v. Burwell, four Virginians claim they are injured by what they describe as the administration’s illegal payment of Obamacare subsidies. Baude offers an easy way out for the president. “If the administration loses in King,” he suggests, “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.” Baude explains that the Supreme Court’s “formal power” is limited to “order[ing] a remedy only for the four people actually before it.”
In offering this “Get Out of Jail Free” card to the Obama administration, Baude notes that “the Constitution supplies a contingency plan, even if the administration doesn’t know it yet.” Alas, the Obama Justice Department is well aware of this stratagem to bypass the federal courts — it has thrice plotted this procedural putsch.
In three high-profile cases, two involving Obamacare and one involving immigration, the Justice Department has openly challenged the power of federal courts to issue nationwide injunctions to halt unlawful executive actions. These desperate efforts to interfere with the courts in order to salvage unprecedented assertions of power have flouted the rule of law.
First, in January of 2011, a federal judge in Tallahassee, Roger Vinson, found that Obamacare’s individual mandate was unconstitutional, and he invalidated the entire law. Two weeks later, the government filed what is known as a “motion for clarification,” asking the court to explain whether the United States could continue to take steps to implement Obamacare while the case was being appealed. Talk about chutzpah!
As I recounted in Unprecedented: The Constitutional Challenge to Obamacare, a former DOJ attorney explained that Judge Vinson’s order “was framed with such breadth that it would be incredibly disruptive with regard to the portions of the Act that were already in force.” The government would not even have been able to comply with the order, the lawyer said. He speculated that Vinson “did not appreciate the full consequences of his order,” and the motion to clarify “was able to call the disruption to the court’s attention.” The Obama administration doubted that a single federal judge could throw a wrench into the lurching Leviathan. In other words, Obamacare was too big to fail.
Judge Vinson was none too pleased with this request, which he saw as a pointless delay. He wrote that, since his opinion was issued, the government had “continued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.” Seemingly insulted, Vinson said that he had not expected that the government “would effectively ignore the order.” Ultimately, he put his ruling on hold, but he reaffirmed that his equitable power of crafting an injunction was not limited to the Sunshine State.
Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest!
The plaintiffs shot back, incredulous that the government had an “apparent intention to lawlessly flout this Court’s binding order.” In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to “vacate the IRS Rule” in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.
Third, last month, a federal judge in Brownsville, Texas, found that President Obama’s most recent executive action on immigration (Deferred Action for Parental Accountability) was unlawful. The suit, brought by Texas on behalf of 26 states, sought to halt the implementation of DAPA in its entirety. Judge Andrew Hanen agreed, and issued a nationwide injunction. True to form, the Justice Department asked Judge Hanen to reconsider his ruling and limit it to Texas alone, or, at most, to the 26 states that were parties to the lawsuit. The Justice Department argued that “Nationwide injunctive relief is particularly inappropriate in the context of government programs.” In its brief to the Fifth Circuit Court of Appeals, the DOJ called Judge Hanen’s order “drastically overboard” and “manifestly excessive” as it “enjoined DHS from implementing the Guidance nationwide, barring implementation in States that do not oppose it and in States that support it.”
While Judge Hanen has not yet ruled on this motion, it should be denied. If DAPA is unlawful, it makes no sense to allow the government to grant benefits in 24 states. If an immigrant moves from California to Texas after being granted benefits under DAPA, the injuries suffered by Texas cannot be avoided.
In these three significant cases, the government’s strategy has become apparent. In the first case, the Justice Department argued that Obamacare was too big to stop, and that a single federal court in Florida could not put it on hold. In the second case, it openly expressed its desire to flout the court’s ruling, on the grounds that a single federal court could issue relief only to the parties before it. In the third case, it claimed that a single federal judge, having found that the secretary of homeland security was acting unlawfully, was powerless to stop him outside his own state — or at least outside the states that were suing. The response has been emphatic: Federal courts, vested with the power of judicial review, can craft injunctive relief to ensure that the executive branch adheres to the rule of law.
While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.
The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them. This breach of the separation of powers would trigger a dangerous race to the bottom, where one state after another would find ways to ignore the jurisdiction of the federal courts. Even if legally correct, this practice should be emphatically rejected, and the Justice Department should cease making this argument. Openly and brazenly flouting the judiciary is a dangerous precedent that should be halted nationwide.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He blogs at JoshBlackman.com. Mr. Blackman joined amicus briefs in support of the challengers in Texas v. United States and King v. Burwell, both on behalf of the Cato Institute.