Faithful Execution

Drawing by David Fitzsimmons, via.

Most politically heartening story of the week, for me, originally from NBC:

WASHINGTON — After congressional Republicans repeatedly failed last year to repeal the Affordable Care Act, President Donald Trump promised to “let Obamacare implode” on its own.

A new lawsuit being filed Thursday argues that Trump’s efforts to make good on that promise violate the U.S. Constitution.

Trump has “waged a relentless effort to use executive action alone to undermine and, ultimately, eliminate the law,” the complaint charges, according to a draft obtained by NBC News. The lawsuit is being filed in Maryland federal court by the cities of Baltimore, Chicago, Cincinnati and Columbus, Ohio.

The Constitutional issue is of course Article II Section 3, on presidential responsibilities, including the one that defines what executive power is: "he shall take Care that the Laws be faithfully executed."


You'll recall how Obama was criticized, called a tyrant, repeatedly accused of "Caesarism" by Ross Douthat, because of a couple of executive orders (he issued fewer executive orders per year than any president since Grover Cleveland) prioritizing the implementation of certain bits of a law over others: in the deportation of undocumented immigrants, where he asked ICE to focus on criminals over people living in their communities, working and paying taxes, going to school, or serving in the military; and in the ACA, when he delayed implementing the mandate for all employers of more than 50 workers to buy health insurance for their employees until 2015.

I thought the latter was a kind of lousy idea, pandering politically, but the Republicans didn't believe there should be any employer mandate at all, and yet they treated this as dictatorship:

Rep. Jim Gerlach (R-PA) complained of an “unparalleled use of executive power.” Sen. Ted Cruz (R-TX), in a Wall Street Journal op-ed piece, griped that there was “simply no precedent” for such “lawlessness.” Speaker John Boehner (R-OH) urged that the House sue the president over his actions (“I would remind the president . . . [w]e have a system of government here, and a system of laws”) and endorsed the STOP resolution, short for “Stop This Overreaching President.”

But if that's a constitutional problem, what's the Trump administration's conduct, as they repeatedly fail to get congressional majorities to overturn the ACA, in sabotaging it to death, as Trump bragged on the Rush Limbaugh show the other day:

"I have just about ended Obamacare. We have great health care," he said. "We have a lot of great things happening right now. New programs are coming out."

He's exaggerating; Obamacare is doing far better against the onslaught than anybody could have predicted. But the Trump administration has definitely tried, as Andy Slavitt wrote the other day at USA Today:

Trump took a series of actions beginning the first day of his administration to make it harder to enroll, to end oversight, to increase the cost of coverage, to eliminate support payments, and to undermine elements of the law that prevent discrimination against people with pre-existing conditions. 

He has even continually bragged on Twitter and in public speeches that “Obamacare is virtually dead,” “essentially dead,” “there is no Obamacare, it’s dead,” “we are getting rid of Obamacare,” “essentially, we have gotten rid of it.”

I think the cities certainly have standing to sue—they have to make up for the increased costs of uncompensated care as the number of uninsured goes back up—and the suit has a very good chance of succeeding. Which will be not only a good thing for the health of the citizenry, but also for the future of constitutional government in the United States. It points the way out of the Trumpery in a really pleasing way.