Make that 6

Daily Best of the Web   —   Posted on March 18, 2015

Make that 6


The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.

Make That 6

  • “Don’t Want NSA to Spy on Your Email? 5 Things You Can Do”—headline, Associated Press, March 16
  • “Bill Clinton Doesn’t Use Email”—headline, American Spectator website, March 11

Contempt of Court
Remember when Barack Obama was president-elect and his enthusiasts made him out to be Lincoln, FDR, JFK and Reagan all rolled into one? Well, the good old days are back, in a manner of speaking, thanks to William Baude, a law professor at the University of Chicago. In an op-ed for the New York Times, Baude declares that “ President Obama could . . . 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.

So what is it that Baude considers to be today’s equivalent of slavery? The Patient Protection and Affordable Care Act of 2010.

You might have been under the impression that likening ObamaCare to slavery was a Tea Party trope, but it seems that King v. Burwell, a case now pending at the high court, has turned the tables, or at least one table in Woodlawn. Baude, an ObamaCare supporter, is making the case for an equivalency between slavery and the ACA—specifically, the act’s provision limiting insurance subsidies to those taxpayers who purchase policies “through an Exchange established by the State.”

If the justices strike down the Internal Revenue Service’s decree to the effect that “established by the State” means “established by the State or not—either way,” Baude thinks Obama should take the same approach Lincoln did to Dred Scott: ignore the decision, except as it applies to the specific plaintiffs. The effect would be that those four individuals would be exempt from the ObamaCare tax on lacking medical insurance, but the IRS would continue doling out illegal subsidies and enforcing the mandate tax against everyone else.

Baude argues that “the real obstacle” to his lawless “contingency plan” is “political.” It “forces the president to spend substantial political capital.” No kidding—and that underscores just how far out the Lincoln analogy is. If the ACA is enough like slavery to justify defying the Supreme Court, does it also justify a civil war?

Let us note there is no indication the administration is contemplating the Baude solution. The op-ed itself quotes Health and Human Services Secretary Sylvia Burwell, the named appellee in the case, as saying in a letter last month to Congress: “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.”

That could be a bluff designed to scare either the court into siding with the administration or Congress into enacting remedial legislation acceptable to Obama. But even if the administration has no idea what to do if King goes against it, Baude hopes to give it an idea. His idea constitutes an outrageous power grab, but at this point is anyone certain Obama would view that as a drawback instead of an advantage? This is, after all, the president who personally (and inaccurately) upbraided the justices during a State of the Union address for a decision he found ideologically uncongenial.

Still, disrespect for the judiciary is one thing; open defiance is a considerably more radical step. If the president’s men are seriously considering Baude’s advice, they might want to consider that the precedent would weaken if not destroy the authority of high court decisions that the left does find congenial.

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.

For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.”