Tuesday, August 14, 2018

Suing the President for ACA Sabotage

Abbe Gluck

I have been detailing the GOP sabotage of Obamacare here and elsewhere for several years now.  President Trump's blatant and boastful use of his executive authority to dismantle a law that has twice been upheld by the Supreme Court and that Congress has not repealed after more than 50 attempts to do so takes that sabotage to a new level.  A year ago, I argued that the President's actions amount to a Take Care clause violation.  A lawsuit was finally filed last month, by several cities, making that claim.

This is not a question of whether a president has discretion in statutory implementation, as most Take Care claims are.  This is a question of whether a president is allowed to deliberately sabotage a law--whether he is allowed to act in bad faith. Conservative scholars, including Randy Barnett, John Manning and Jack Goldsmith, have previously suggested that the Take Care clause means what it says:  A president has to "faithfully" execute the laws.  No plausible reading of those words includes deliberate sabotage.  In contrast, Trump has said, over and over again, that he is using his authority to "dismantle" the ACA.  I have an op-ed in the NY Times with Nick Bagley today that provides more detail about the acts of sabotage, the claims and the lawsuit.  The opening and the link are here:

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.

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