Lately there has been much discussion around here of the competing paradigms of “judicial supremacy” and “departmentalism,” all of it prompted by the rather daring suggestion by University of Chicago law professor Will Baude, in the New York Times last week, that the Obama administration could respond to a loss in King v. Burwell by treating the adverse ruling as only affecting the individual parties in the case, while continuing to dole out the Obamacare insurance subsidies (and enforcing the individual and employer mandates?) for everyone else in the states that have established no insurance exchange.
Baude cited the most well-known rhetorical challenge to judicial supremacy in our history, a response to the Dred Scott decision that appeared in Abraham Lincoln’s first inaugural address in 1861:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
What did Lincoln do, as president, to turn this rhetorical challenge into a practical one? For one thing, he instructed the Department of State to issue passports on request to free black Americans, ignoring the holding of the Taney Court that blacks were not considered citizens of the United States by the language of the Constitution. For another, he encouraged and signed legislation in 1862 banning slavery in all western territories, in direct contradiction of the Dred Scott holding that such legislation was unconstitutional. The country was otherwise occupied in 1862 and for some time thereafter, and so did not have an opportunity for this legislation to be put to the test in the Supreme Court (which would have required parties affected by it to challenge its constitutionality), before the matter was mooted entirely by the Thirteenth Amendment.
Baude’s article strains to apply the Lincoln precedent to the situation in King v. Burwell, and it doesn’t really fit. First, notice that Lincoln speaks of “ordinary litigation between parties, in personal actions” being inflated into decisive pronouncements on the constitutionality of acts of Congress. That was Dred Scott, to be sure—a suit between private parties in which a slave sought his freedom—but it is not King v. Burwell, a case in which the secretary of HHS is a named party, and could hardly claim the authority, after an adverse ruling, to continue executing the very policy held by the Court to be unauthorized by the Obamacare statute.
Moreover, King is a case in which “departmentalism” doesn’t really work at all, since it is a matter of statutory interpretation. Departmentalism holds that each branch of government has some kind of decisive authority to interpret the Constitution where its own power is concerned. So presidents may legitimately feel themselves not bound by judicial pronouncements on the exercise of core constitutional powers of the executive. And Congress may legitimately balk at being told by the courts what the limits of its constitutional legislative powers are. The Obama administration cannot really claim that King is about core executive powers, and certainly cannot claim that congressional power is at stake on its side of the case (it seems rather the reverse, doesn’t it?).
All that being said, there has been a good deal of conservative over-reaction to Baude’s somewhat feeble argument. Jonathan Keim surveys a lot of the conservative responses to Baude here. Let’s take, as fairly representative, Josh Blackman’s NRO piece from last week. He sees a pattern of Obama administration failure to toe the lines drawn by judges, citing this early example:
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!
Try as I might, I can’t see the chutzpah here—not on the administration’s side, anyway. Congress passes a statute regulating the nation’s health-care economy. A presidential administration begins to execute the law, and defends it in litigation. A single judge, with jurisdiction over one federal district in one state, holds the statute unconstitutional. Blackman seems to think that a responsible administration should call all execution of the law to a complete halt, nationwide, without taking steps to have the ruling stayed on appeal until a final disposition by higher courts. From Blackman’s own detailed description of what happened next, it seems to me the location of the chutzpah here was pretty clearly Judge Vinson’s chambers, not the Obama administration—indeed, it seems the opposite of chutzpah for the administration to ask Judge Vinson to clarify his ruling. This is judicial supremacy with a vengeance, whatever one’s view of the constitutional issue.
The Heritage Foundation’s Elizabeth Slattery and Hans von Spakovsky also over-react, with a misplaced reliance on a notoriously ill-reasoned case:
[T]he 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.
There’s an apples-and-oranges problem here. Cooper did indeed involve the defiance, by Arkansas officials, of the Brown ruling, and the Supreme Court rightly slapped down Arkansas when it decided Cooper in 1958. But the justices in Cooper said far more than was necessary to reach this result, propounding a sweepingly broad, quite anti-constitutional understanding of judicial supremacy:
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison . . . that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI “to support this Constitution.” . . .
It’s one thing to say that the Supreme Court, at the apex of the federal judiciary, has a binding authority over the states to see that the Constitution means the same thing in every part of the country, when cases and controversies necessitate the performance of this duty. It is quite another thing to say, as Cooper did, that Supreme Court rulings are “the supreme law of the land” owing to an exact identity with the Constitution itself, and thus binding with Article VI force on all rival interpreters of the Constitution. From this it would follow that Congress and the president, no less than the states, are bound by their oaths to accept Supreme Court decisions as binding expositions of the meaning of the Constitution.
That is the proposition that departmentalism challenges, and rightly so. It’s what Lincoln rightly refused to accept in his response to Dred Scott. The Cooper dictum quoted above rests on a massive exaggeration—to the point of historical falsehood—about the import of the Marbury case, and thus gets the Constitution wrong too. Unfortunately, this exaggeration is practically orthodoxy today. Will Baude, whose own departmentalism is fairly half-baked, sure found this out.