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.