The Obama Administration could lose a Supreme Court case over Obamacare, yet leave the law squarely in place.
William Baude, who is a professor of constitutional law at the University of Chicago, says if the Supreme Court rules that tax credits on the federal health exchanges are unconstitutional, the administration could leave those credits in place except for the four people who brought the suit in the first place.
Could the administration actually do that? Baude says they would be on solid Constitutional ground if they decided to take that route.
The King litigation is different, because almost everybody who is eligible for the tax credits is more than happy to get them. Most people who receive tax credits will never sue to challenge them. Lawsuits can be brought only by those with a personal stake, so in most cases the tax credits will never come before a court. The administration is therefore free to follow its own honest judgment about what the law requires.This idea may seem radical, but it has a strong legal pedigree. Judicial authority, or jurisdiction, is case-specific and person-specific. That is true even of the Supreme Court, which the Constitution gives “judicial power” to decide “cases” and “controversies.” It is reaffirmed by Marbury v. Madison (1803), which affirmed the power of judicial review by relying on the Supreme Court’s duty to decide “particular cases.”