Bench Memos

Can “Departmentalism” Save the Government in King v. Burwell?

Last Tuesday, former Volokh Conspiracy blogger and law professor Will Baude published an op-ed in the New York Times proposing that the Administration apply what might be called the strong departmentalist view to the case of King v. Burwell if it loses:

[T]he 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 legal theory, called “departmentalism,” had its most articulate exposition in President Abraham Lincoln’s inaugural reflections about whether the Lincoln Administration would apply the Supreme Court’s infamous decision in Dred Scott v. Sandford (1857). Setting aside the technical legal question for a moment, I wouldn’t draw moral equivalence between the two cases. A setback for the Obama Administration’s pet program is hardly as significant as the enslavement of millions of human beings.

Anyway, response from commentators has been correspondingly skeptical. Law professor Josh Blackman called the prospect “surreal” and the argument, which has surfaced several times in Obama Administration litigation, a “procedural putsch.”

The Wall Street Journal’s James Taranto pointed out an obvious problem:

Also this term—quite possibly on the same day as the King case is decided—the court will issue a ruling that will likely hold there is a constitutional right for same-sex couples to marry. The administration presumably will expect the states to accept this as binding law and modify their policies accordingly. Or, to take a case decided years ago, Planned Parenthood v. Casey (1992) won’t mean very much if states decide to act as if the right to abortion belongs only to women who sue.

Moreover, if Supreme Court decisions aren’t treated as binding on the Executive branch, then they won’t be binding on other parties either. Tax professor Andy Grewal wrote at the Yale Journal on Regulation blog:

Maybe the IRS would simply announce that it will limit King v. Burwell to the actual litigants and that taxpayers can go ahead and claim the credit. But that proposition would be monumentally corrosive to the tax system and it is unimaginable that the IRS would adopt that approach. Taxpayers must file true and accurate returns with regard to case law — it’s no defense to civil and criminal penalties to argue that contrary case law is irrelevant because the taxpayer was not a party to the actual litigation. The IRS may as well issue a regulation saying “No one has to pay any taxes” and tell taxpayers that they can rely on it.

Noah Feldman echoed the same criticism:

If the president of the United States were to announce publicly that he intends to treat the Supreme Court’s precedent as nonbinding on the U.S. government, he would be opening the floodgates for everyone else to do the same. That would be true even if there were a formal legal argument that the U.S. wasn’t a bound party. It might (arguably) not be a high crime and misdemeanor under the Constitution that would get a president impeached. But in practical real-world terms, it might well be worse for the rule of law than simply breaking a statute.

Elizabeth Slattery and Hans von Spakovsky wrote that the legal theory is actually invalid under current case law:

If the Supreme Court holds that a particular statute is unconstitutional on its face or that a particular regulation was improperly issued by a federal agency, that ruling applies in all circumstances in which that statute or regulation was or could be applied – not just to the particular plaintiff in front of the Court unless the Court specifically limits its ruling to the plaintiffs before the Court.

In fact, the Court rejected Baude’s legal theory in Cooper v. Aaron, when it determined that officials in Arkansas were bound by the holding of Brown v. Board of Education even though only Delaware, Kansas, South Carolina and Virginia were the named parties in Brown.  Obviously many students and school administrators were, at the time, unfortunately “happy” with segregation; that doesn’t mean the states that weren’t parties to the case could ignore the Court’s ruling in Brown.


Baude seems to be urging Obama to copy President Andrew Jackson’s shameful response to Worchester v. Georgia, in which the Supreme Court ruled that Georgia violated a federal treaty when it sought to regulate the Cherokees.  Jackson allegedly responded, “[Chief Justice] John Marshall has made his decision, now let him enforce it,” leading to the infamous Trail of Tears when the Cherokees were forced out of their ancestral homelands.

Not exactly admirable precedent.

Even defenders of the government’s case in King were hostile. Nicholas Bagley, for instance, wrote:

It is inconceivable . . . 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?

Good questions. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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