We hear a lot about bypassing Congress these days.

But now an assistant professor of law at the University of Chicago is suggesting that, if the ruling in the ObamaCare subsidies case doesn’t go the administration’s way, President Obama could simply by pass the Supreme Court.

Writing in today’s New York Times, law professor William Baude suggests:

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.

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.

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.

Mr. Baude admits that there “are legal wrinkles, of course!” To be sure.

He cites as a precedent Lincoln’s second inaugural address in which Lincoln mentioned a Supreme Court ruling on slavery. Lincoln rejected “any assault upon the court,” but he said that “the policy of the Government upon vital questions affecting the whole people” ought not be “irrevocably fixed” by a ruling in a case brought by a few. Baude writes:

 If the Obama administration thinks the stakes are high enough, it can take the same path.

Call me an ignoramus but I’d need Baude to name the specific Supreme Court case to which Lincoln referred in order to even look it up on Wikipedia. And what did Lincoln do about this case? I'm not saying Lincoln didn't take action, but I don't know. Mr. Baude doesn't mention anything, and if it were something significant, such as the Emancipation Proclamation, I can't belive Baude would omit to mention it. This isn’t much in the way of legal precedent—a quote from an inaugural address—and I assume if the professor were on firmer ground, he would have provided more information. 

The second faulty assumption is that continuing taxpayer-provided subsidies to keep afloat a seriously flawed and deeply unpopular law rises to the level of ending slavery.   

What's worrying is that this may be a trial balloon for an administration that has already admitted it has no plan if the Supreme Court rules against the subsidies.