A president doesn’t have the right to dispense with laws he dislikes.
From the moment he took office, President Trump has used all aspects of his executive power to sabotage the Affordable Care Act. He has issued executive orders, directed agencies to come up with new rules and used the public platform of the presidency in a blatant attempt to undermine the law. Indeed, he has repeatedly bragged about doing so, making statements like, “Essentially, we are getting rid of Obamacare.”
But Mr. Trump isn’t a king; he doesn’t have the power to dispense with laws he dislikes. He swore to preserve, protect and defend the Constitution of the United States. That includes the requirement, set forth in Article II, that the president “take care that the laws be faithfully executed.”
Faithfully executing the laws requires the president to act reasonably and in good faith. It does not countenance the deliberate sabotage of an act of Congress. Put bluntly: Mr. Trump’s assault on Obamacare is illegal.
Among Mr. Trump’s first acts in office was to issue an executive order instructing his agencies “to waive, defer, grant exemptions from, or delay the implementation of” any part of the Affordable Care Act that they could. That order has prompted a series of administrative actions aimed at undermining the law.
To make it harder for people to enroll in Obamacare plans, for example, the administration shortened the open enrollment period on the health care exchanges from three months to six weeks; cut 90 percent of the funding that the exchanges had used to advertise open enrollment; and slashed the funding available to groups that help people navigate the complex enrollment process.
To sow chaos in the insurance markets, Mr. Trump toyed for nine months with the idea of eliminating a crucial funding stream for Obamacare known as cost-sharing payments. After he cut off those funds, he boasted that Obamacare was “being dismantled.”
When Congress declined to repeal the Affordable Care Act, as Mr. Trump had requested, he said that he was taking on that job himself: “So we’re going a little different route.”
This month, the Trump administration dealt what may be its biggest blow yet to the insurance markets. In a new rule, it announced that insurers will have more latitude to sell “short-term” health plans that are exempt from the Affordable Care Act’s rules. These plans were designed to provide people insurance for small gaps in coverage, like those created when switching jobs. They had previously been limited to three months.
Under Mr. Trump’s new rule, however, such plans can last for 364 days and can be renewed for up to three years. That rule joins an earlier one that allowed businesses to join together to create “association health plans” that also evade the Affordable Care Act’s strictures. In effect, these rules are creating a cheap form of “junk” coverage that does not have to meet the higher standards of Obamacare. This sort of splintering of the insurance markets is not allowed under the Affordable Care Act as Congress drafted it.
The Trump administration’s goal is not only to weaken the Affordable Care Act but also to trick the public into thinking, as opponents of the law like to say, that Obamacare is “collapsing under its own weight.” Let’s be clear: If the Affordable Care Act collapses, it is because the president demolished it.
Never in modern American history has a president so transparently aimed to destroy a piece of major legislation. What makes Mr. Trump’s sabotage especially undemocratic is that Congress has repeatedly considered repealing the law — and repeatedly declined to do so. In addition, the Supreme Court has twice sustained the Affordable Care Act in the face of major legal challenges. Mr. Trump’s attempt to destroy the law any way he can is an unconstitutional usurpation of power.
That is also the message of a lawsuit — the first of its kind — filed this month in federal court in Maryland. Brought by several plaintiffs including the cities of Chicago, Cincinnati and Columbus, the lawsuit recounts the “relentless and unlawful campaign to sabotage and, ultimately, to nullify” the Affordable Care Act. Taken individually, some of the Trump administration’s actions may be defensible. Taken together, they amount to a derogation of his constitutional duties.
The lawsuit asks the court to strike down the administration’s new rules and to enjoin the president from further sabotage. To prevail, the plaintiffs may have to overcome some procedural hurdles, including questions about whether the courts have the authority or the institutional competence to prevent violations of Article II’s requirement that the president “take care that the laws be faithfully executed” — especially given the wide discretion that presidents traditionally have to implement the laws.