In the New York Times, Nicholas Bagley & Abbe R. Gluck: Trump’s Sabotage of Obamacare Is Illegal: A president doesn’t have the right to dispense with laws he dislikes.  From the introduction:

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.

Via Professor Gluck at Balkinization, where she adds:

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 BarnettJohn 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.

From an originalist perspective I generally agree on basic principles.  The President does not have the “dispensing power” claimed by some English monarchs; that was part of the point of the take care clause.  (See this excellent essay by Michael McConnell, discussing President Obama’s non-enforcement of the immigration laws as to certain classes of people). Further, the clause likely does impose a duty of good faith derived from the idea of “faithful” execution, as Professor Gluck says.

But I’m much more skeptical on the particular applications (both as to President Trump and President Obama).  To the extent the President has discretion vested in him by the statute, it seems entirely consistent with faithful execution to exercise that discretion according to his views of public policy, including in ways that limit the scope of the law.  I’m not a health care scholar, but it appears from the examples given later in the Bagley/Gluck essay that the actions to which they object are mostly exercises of discretion vested in the President by the Obamacare statute.  (At least one example may be a situation in which the President has concluded that part of the statute, or part of prior implementation, was unconstitutional; but that too is consistent with faithful execution, as the President also must faithfully uphold the Constitution).  Similarly, I’m inclined to disagree with Professor McConnell regarding Obama’s immigration orders to the extent that the President was acting pursuant to discretion vested in him by statute.  Part of separation of powers’ protection of liberty is that the laws are executed by a different entity from the one that enacts them, thus introducing a checking function.  (Montesquieu, Spirit of the Laws, Ch. VI).

As long as the President is acting consistently with the statute (including its delegations of discretion), he seems to me to be faithfully executing it, even if he’s executing it in a way that we may speculate the enacting Congress or the present Congress might disapprove of.  The problem (if there is one) is not excessive exercise of presidential power, but rather too much delegation by Congress.

I’ll add another recurring comment.  Professors Bagley and Gluck refer to a lawsuit challenging President Trump’s execution of the Obamacare statute:

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.

As regular readers will guess, I strongly share the authors’ doubts about courts’ “authority and institutional competence” to hear such a claim — especially their authority.  Of course, courts have authority to hear claims that the President is acting within the discretion conveyed by statute.  But if the President is acting within the discretion conveyed by statute, my view is that courts do not have authority to decide if the President is misusing that discretion.  Chief Justice Marshall wrote in Marbury, the President’s exercise of discretion is a political, not a legal, question.  I think that’s consistent with the original design. The alternative view would make every presidential action subject to review to determine if it is made in good faith (however that may be defined and determined), with the result that the judiciary would become a general supervisor of the executive branch.  If the President is using his lawful discretion to “sabotage” — or, one might say, limit the scope of — the Obamacare statute (or the immigration laws), the Constitution provides political remedies.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.


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