START OF 2018 OPEN ENROLLMENT PERIOD

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The most novel King v. Burwell "contingency plan" to date

In today's New York Times, William Baude, an assistant Law Professor at the University of Chicago, comes up with quite the eye-opener:

But luckily the 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 announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court’s reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue.

Wow. I had no idea that Supreme Court decisions can (in some cases only, I'd imagine) be applied only to the plaintiffs themselves. Apparently the main reason why their decisions are generally instituted nationwide is pragmatism, not Constitutional: If, say, Miranda v. Arizona had only applied to Ernesto Miranda personally, the Court's decision would have presumably been followed by another, and another, and another, as any number of arrestees who hadn't had their 5th Amendment rights read to them would sign on as plaintiffs and go through the same process, hopelessly gumming up the works and bringing the SCOTUS docket to a screeching halt:

To be sure, the government almost always agrees to extend Supreme Court decisions to all similarly situated people. In most cases, it would be pointless to try to limit a decision to the parties to the lawsuit. Each new person who was denied the benefit of the ruling could bring his own lawsuit, and the courts would simply rule the same way. Trying to limit the decision to the parties to the suit would just delay the inevitable.

However, in this case, the "damage" claimed is so absurd, obscure and limited (look at how far down the bottom of the barrel they had to scrape to come up with these 4 "plaintiffs" they did in the first place), it'd be hard to imagine more than a handful of other individuals out of a nation of 319 million people being dug up who fit the technical requirements to bring up the same case again.

But 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.

For that matter, by the time such a "Take 2" case went through the entire process again, we'd likely be through a 3rd or 4th year of Open Enrollment, and presumably the number of people receiving federal tax credits in the states in question could be as high as 15-20 million, making the impact that much greater.

This is apparently more of an interesting theoretical/what-if thinking exercise than anything else, along the lines of the "Trillion Dollar Platinum Coin" idea that was tossed around a few years back during one of the "debt ceiling" debacles (another completely Rebublican-manufactured "crisis", as it happens). As Nicholas Bagley noted:

For the record, the likelihood Obama will take the approach @WilliamBaude sketches out is roughly nil. But it's interesting and provocative.

— Nicholas Bagley (@nicholas_bagley) March 17, 2015

Still, The More You Know® and all that...fascinating stuff.