Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly that his plan is to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking. Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president “shall take care that the laws be faithfully executed.”
Trying to destroy the law through nonenforcement isn’t just a normal exercise of presidential discretion. It’s a subversion of the legal process and a violation of the president’s oath of office. And it’s one that could potentially, if controversially, end up in court.
To avoid confusion and exhaustion in the Trump era, I’ve argued for drawing a simple line: When Trump advocates and enacts policies that you disagree with, it’s appropriate to express disagreement, tempered with the acknowledgment that this is the right of an elected president, especially one whose party controls both houses of Congress. The attempt to repeal the Affordable Care Act is and was a perfect example. Democrats and liberals were free to oppose the repeal, but not (in my view) free to say there was something fundamentally inappropriate about the effort.
But when Trump tries to break existing constitutional norms, it’s a whole different ballgame. Then the job of critics is to call out the attempt to change the rules of how U.S. government works.
Announcing — even by tweet — the goal of letting a law fail falls outside constitutional norms. It violates the requirement that the executive actually execute the laws passed by Congress.
It’s important to distinguish intentionally allowing a law fail from exercising executive discretion, for example in prosecution. Every president must establish priorities with respect to law enforcement. There are simply too many laws on the books for all to be enforced with existing manpower. And even if there were enough prosecutors and FBI agents and tax examiners to enforce all laws, there would still have to be some prioritization based on gravity of the offense.
The norm of presidential discretion in law enforcement extends to immigration, where presidents including George W. Bush and, more controversially, Barack Obama have formalized their goals, explicitly stating that some otherwise deportable noncitizens wouldn’t be deported.
A federal court in Texas ruled that Obama’s exercise of immigration discretion was unconstitutional. The U.S. Court of Appeals for the 5th Circuit agreed and upheld the order blocking his action. The Supreme Court left that order in place after splitting 4-4 on whether to overturn it.
I and other liberals thought that ruling went too far. And I myself would not apply a stricter standard to Trump. But Trump’s action is worse than Obama’s, constitutionally speaking.
To be sure, if Trump were to exercise his enforcement discretion not to impose tax penalties on people who don’t buy health insurance as required by the individual mandate, that would on the surface look similar to Obama’s exercise of enforcement discretion.
To make the case even stronger for Trump, there’s reason to believe that the Obama administration itself didn’t actively enforce the tax penalties in the early years of the Affordable Care Act. It’s hard to prove a negative, but at a minimum, there weren’t news stories reporting on such enforcement actions, which there certainly would have been had reporters heard of them.
The crucial difference, however, would be that Trump’s nonenforcement would be openly intended to break Obamacare, whereas Obama’s nonenforcement (if that’s what it was) was surely aimed to allow a gradual adoption of the mandatory coverage provisions.
Trump’s goal in not enforcing the individual mandate would be, presumably, to generate the “death spiral” that economists predict would occur without that provision of the law: If healthy people don’t buy insurance, and the law continues to require insurance companies to cover anybody who applies regardless of pre-existing conditions, then lots of people will only buy insurance once they get sick. That would make the risk pool so undesirable that the price of health insurance would rise precipitously, which would in turn encourage fewer healthy people to buy insurance.
The difference then lies in intent. And that intent has a crucial legal basis: the word “faithfully” in the take care clause of the Constitution. The Constitution recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort. And declining to enforce the law so that the law itself ceases to be able to function isn’t good faith.
In contrast, nonenforcement that aims to make the law work counts as faithfulness.
The same faithfulness problem would exist, I believe, if Trump refused to pay insurance subsidies to poor Americans under the ACA — an idea he has discussed before — with the specific goal of making the law fail.
Given that conservative courts did try to block Obama’s nonenforcement of immigration law, we could potentially see lawsuits against Trump’s nonenforcement of the ACA, especially if he makes a formal directive. The legal merits of such a challenge are worth further discussion, especially for anyone who, like me, thought the Texas court and 5th Circuit went too far in blocking Obama’s discretion.
Regardless, it’s well worth calling out Trump’s unusual and very possibly unprecedented statement that he wants to make an existing legal regime fall apart. That’s unconstitutional — and it is serious business.
— Read Alexander Hamilton: What Did He Really Say About Health Policy? on ThinkAdvisor.