The president cannot bypass the courts

In these three significant cases, the government’s strategy has become apparent. In the first case, the Justice Department argued that Obamacare was too big to stop, and that a single federal court in Florida could not put it on hold. In the second case, it openly expressed its desire to flout the court’s ruling, on the grounds that a single federal court could issue relief only to the parties before it. In the third case, it claimed that a single federal judge, having found that the secretary of homeland security was acting unlawfully, was powerless to stop him outside his own state — or at least outside the states that were suing. The response has been emphatic: Federal courts, vested with the power of judicial review, can craft injunctive relief to ensure that the executive branch adheres to the rule of law.

While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.

The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them.