The law applies to everyone, even folks in pink hats.

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Obama Can't Ignore Court on Obamacare

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed? Of course not. Obeying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law. It would put the administration in the position of flouting the court’s authority. It would be substantially more outrageous even than the Alabama Supreme Court’s order to its probate judges to ignore a federal ruling striking down the state’s anti-gay-marriage law. For these reasons, it’s also completely unrealistic.

The argument advanced by William Baude in an op-ed article in Tuesday's New York Times is based on the kind of technicality that makes people hold their nose when they smell a lawyer coming. Whenever a court decides a case, it formally binds only the parties who are involved in that case. Unless it’s a class action with a large group of plaintiffs or defendants who were identified by their circumstances rather than by their names, you can always say after any judicial decision that the case doesn’t apply to anyone who isn’t before the court.

The essence of a system based on legal precedent is that we know the same court or any inferior court would rule the same way in the next case. That prevents us from relitigating every issue ad infinitum. It’s also the reason U.S. Supreme Court judgments have the force of law. They’re binding precedents for all other courts addressing issues of federal or constitutional law. They’re also binding on the court itself, unless unusual circumstances exist under which the court chooses to reverse its earlier holding -- such as in Brown v. Board of Education, the desegregation decision, or Lawrence v. Texas, the landmark gay-rights case.

Formally, then, precedent is law simply because of a prediction that the courts will apply the precedent. The entire system of legality as we know it would collapse if every similarly situated person continued to act as though the judicial decision wasn’t binding. If every legal principle had to be brought to court every single time it arose, the courts would be overwhelmed with litigants. No one would ever make a contract -- because you’d have to wait for a court to enforce it.

In the real world, what makes a judicial ruling into law is not simply the prediction that it will be followed. It’s the consensus within the society that the judicial precedent actually forms a rule that guides conduct. Take away that consensus, and you no longer have the rule of law.

At the risk of stating the obvious, the executive branch of the federal government is the single most important actor in U.S. legal affairs. What’s more, the government is a party to the King v. Burwell litigation. Sylvia Burwell, in case you’ve forgotten, is the secretary of the Department of Health and Human Services.

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.

So why is a professor of law advocating this troubling approach? One weird feature of the King litigation seems to be partly at fault: The King litigants are actually claiming that they don’t want to receive subsidies that would help them buy health care.

My colleague Larry Tribe, the acknowledged grandmaster of constitutional law, first drew my attention to this strange phenomenon, which he playfully called masochistic standing. Ordinarily, plaintiffs allege they have suffered an injury in fact because they have to pay money they wouldn’t otherwise have to pay or suffer some harm. It’s anomalous that the King plaintiffs are arguing for the right to pay more money, not less, for health insurance.

Conceivably this glitch in the King case might be of interest to the justices if they wanted to make the case go away by saying the plaintiffs lacked standing. But it’s also the reason someone could suggest that the Obama administration could get away with refusing to apply an eventual decision to other parties -- maybe no one else would show up to refuse the benefits.

It would, however, be extraordinarily irresponsible for the administration to weaken the rule of law just because the King plaintiffs are legal masochists. When Abraham Lincoln limited pro-slavery precedents to the parties, he was dealing with fundamentally immoral law -- and a country on the brink of war. His actions were very close to nullification of the law. Once the war was under way, as we know, Lincoln felt justified in breaking the law in order to preserve the Constitution, for example by suspending habeas corpus unilaterally even though it was pretty clear to everyone (including the chief justice of the U.S., in an opinion he wrote for a lower court) that only Congress has that authority under the Constitution.

For all the heated rhetoric around Obamacare, in this case, the fate of the Republic doesn’t hang in the balance.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net