There’s a reason the Republicans are frantically trying to load the federal bench–including the Supreme Court– with ideological conservatives: given Congress’ refusal to discharge its constitutional duty to oversee the executive branch, the courts are the only recourse for Americans opposed to the criminal enterprise that is the Trump Administration.
There are currently hundreds of challenges to that administration making their way through the courts, and a number of them are critically important. One of those involves the “take care” portion of the chief executive’s job description–the duty to “faithfully execute” the laws of the land.
People who depend on the Affordable Care Act–and all citizens who believe that Presidents have such a duty –should be rooting for the success of a lawsuit recently filed by four cities.
Vox introduced its report on that lawsuit thusly:
Abbe Gluck argued, in October 2017, that President Trump’s “sabotage” of the Affordable Care Act violated his duty under the Constitution to ensure laws passed by Congress are executed. This week four cities — Baltimore, Chicago, Columbus, and Cincinnati —filed a suit making that very claim.
Here’s the essence of the argument:
Modern American history has never seen as full-scale an effort to sabotage a valid law as we have with President Trump and the Affordable Care Act — a law whose legality has been upheld twice by the US Supreme Court.
The president has a legal obligation, under Article II of the US Constitution, to “take Care that the laws be faithfully executed.” That means he must make sure that our laws are implemented in good faith and that he uses his executive discretion reasonably toward that end.
His agencies likewise have a legal obligation, under the Administrative Procedure Act — the statute that sets the rules for our entire federal regulatory apparatus — not to use their power to engage in arbitrary action.
The intentional, multi-pronged sabotage of the ACA that we have seen during Trump’s presidency — reaching new heights since attempts by Congress to repeal the law failed — violates both Trump’s constitutional obligations and quite possibly the obligations of his Department of Health and Human Services.
Like the pending lawsuits alleging violations of the Emoluments Clause, the take care clause has rarely–if ever–been the basis of a lawsuit. At least in modern times, it certainly hasn’t been the basis of a case against a president, and that is entirely understandable: most legal scholars agree that presidents need a fair amount of discretion in enforcing the laws. Demonstrating that the person in the Oval Office is purposely undermining a law rather than exercising discretion is extremely difficult. Usually.
But this, of course, is Donald Trump–idiot extraordinaire. Far from masking his motives (making proof difficult), he has trumpeted and tweeted them.
The ACA requires the federal government to support the open enrollment period — in which individuals must sign up for insurance or lose their chance to do so. The ACA requires the federal government to, among other things, maintain a website and work with local “navigators” and other groups to educate consumers and encourage them to sign up for insurance.
Trump instead set out to make open enrollment a failure.
He cut the enrollment period in half, from three months to six weeks. He shut down the federal enrollment website for nearly 12 hours every Sunday during the period — a crucial window when working Americans might enroll. He has canceled already- scheduled events in which federal officials had planned to visit states and help with enrollment. He cut advertising for enrollment by 90 percent, from $100 million to $10 million, even though his administration charged insurers on the exchanges user fees to generate money for that same advertising. (Those fees far exceeded $10 million.)
One day before the new budget year began on September 1, he announced a 40 percent cut to those navigator programs — after promising them $60 million in grants in May, and afterhis administration had said it would support navigators in order to partly offset the obstacles erected by the curtailed enrollment period.
Why would President Trump want to stifle open enrollment? Because that would seriously weaken the ACA’s insurance markets, which require a mix of healthy and sick customers to be stable. In line with that ambition, he also signed an executive order last week that directs his agencies to consider policies that would allow the sale of new group and short-term plans lacking many ACA protections. These alternative plans are likely to pull even more healthy individuals out of the insurance markets.
The same day, Trump announced his plan to cut off important cost-sharing payments that the ACA promises to insurers to compensate them for reducing what individuals have to pay in premiums… creating extreme instability in the insurance industry… And Trump made clear that his goal in cutting off the funds was to harm he law. He tweeted the same day the policy was announced: “ObamaCare is causing such grief and tragedy for so many. It is being dismantled …”
Knowledgable observers calculate that premiums would have declined this year, rather than increasing, if not for Trump’s sabotage. That’s bad enough, but if a President can get away with eviscerating rather than enforcing valid laws with which he personally disagrees, the rule of law becomes meaningless.
I believe all of his ideas are coming from the Freedom Caucus members in Congress and a handful of evil hateful members of his Cabinet. He never really cared about the ACA and even claimed that he was going to make health insurance better and less expensive during his campaign.
Just to show a little history, Democrats, without a single Republican vote, passed a Republican health care plan that helped insurance companies as much as it helped the citizens. After that Republican plan was passed, Republicans worked tirelessly to invalidate that law in the Federal Courts.
They managed to put the squeeze on the plan, by making Medicaid expansion the responsibility of the several states, allowing them to opt in or out as they so chose. They also made sure that any Hobbyist who firmly believes that corporations are people, and entitled to rights, but isn’t sure that women are people and may also be entitled to rights, can opt out of coverage that includes contraception.
Despite Republican attempts to squeeze the law out of existence, the people came to love the law. Now comes 45, who promises a health care plan that will cover everyone, but will cost less. I’m sure it’s not costing him anything at all to cover everyone he cares about.
ACA was not a good plan to begin with. Agent Orange has proven how fragile ACA is. ACA was at it’s core a subsidy for the For Profit Medical Industry. Affordable was just another word for health care based upon economic class. ACA was and is riddled with premiums, co-pays, deductibles, and in and out of network restrictions. Look at all the hoops you have to jump through, just to sign up. Then the quality of health care is still determined by what YOU can afford.
The Democratic Party has a chance to embrace Universal Health Care – Enhanced Medicare-Single Payer. Everyone is in no one is out. Some Democratic candidates for office have seen the light and are embracing Universal Health Care or Single Payer. The current Heath Care system we have is brutal, inhumane and cruel.
Nancy,
Trump DID, in fact, promise health care for everyone with lower cost than the ACA. He specifically stated that he would have “Obamacare” replaced with something much better. Of course, he was lying through that sewer he calls a mouth.
A criminal enterprise, like the one being run out of the White House, has no interest in the letter or spirit of any law that impedes that enterprise. Any cogent, somewhat literate person can see this. Unfortunately, 62 million voters was enough to exploit the inherent weakness in the electoral college system.
A comedian said: “Obama was what we aspired to be, and Trump is who we are.”
We’re witnessing a BLOWBACK from the PREACHING of ARMAGEDDON. It looks like it could be the U.S.A., not the Middle East anymore, where ARMAGEDDON will be, eventually, played out.
Isn’t that exciting?
Monotonous; President Obama stated many times when ACA was enacted that it needed work, he didn’t point out that it was the Republicans who refused to “come to the table” to help develop the health care plan. Nor did he point out that parts of the ACA had been authored by Republicans under George W. but Democrats refused to help pass it. These people “do not play well with others”; both sides are negligent in developing a working health care system with reasonable costs for all, including prescriptions. There are still Americans who want to end Obamacare but maintain the ACA…probably including some members of Trump’s administration and Congress.
JoAnn, ACA as I pointed out was a loser to begin with. ACA just turned a square wheel into a triangle.
The Republicans did not need to “come to the table”. After the 2008 election the the Democrats ruled the House 257 to 178 Republicans and ruled the Senate 57 to 41 Republicans, with 2 Independents.
Obama should have the made case for a Federal Single Payer Program or Enhanced Medicare for All, including prescription drugs, dental and eye care from Maine to Hawaii. FDR did not wait for Republicans to “come to the table”. FDR proposed a New Deal and pushed it forward.
All of this jockeying to see who can most fruitfully award their contributors is nonsense, nonsense which most civilized countries (even including Cuba) have long since left in their respective wakes. Medicare for All is a start, but France with its single payer is acknowledged to be the best in the world, so instead of visiting Moscow perhaps our Republican senators should visit Paris.
To the argument that we can’t afford a single payer system is the counter argument that we are already paying for such a system and not getting it due to the profits paid to HMOs and insurance companies, dividends to their shareholders etc., and on their terms. Such a system would be totally inclusive, better, cheaper, and once established, safe from political intrigue, as in, how many countries that enjoy single payer financing of healthcare legislation have attempted to repeal such act(s) and return to privatization schemes? Can you spell nada?
Gerald,
“…….perhaps our Republican senators should visit Paris.”
How can the Republicans do that? They’re stuck RIDING on the RUNAWAY RACIAL EXPRESS, as we’re being BOILED like of bunch of FROGS. At the moment, all ANYONE can do is PRAY along with out EVANGELICAL NEIGHBORS and FAMILY.
Still, no matter what, Vote Blue!
One of the many ways oligarchs from their giant pervasive entertainment media soapbox led and lead us astray is to tell us that we have a health care insurance problem when in fact we have a completely dysfunctional healt care delivery system that can’t be made functional tinkering with who pays which health care bill.
We can’t afford the only kind of health care available to us and compete in global business markets when health care including the huge costs of insurance against it bankrupting us is pushing $1 out of every $5 in GDP. At best we have have luxury health care delivery for the wealthiest half of the population. The rest of us truly choose between health and sustenance and shelter and transportation and family care.
We don’t need lawyers to point out that this is against the Constitution. A casual reading of the preamble tells us that.
Thank you for educating us about the ‘take care’ provision. I have wondered for months what remedy there is for lack of enforcement of laws with which the chief executive disagrees (an act of omission). What he is doing to the ACA is outright sabotage – an act of COMMISSION. Bless those who are bringing this lawsuit. It’s a signal to state executives as well as the President that they are not above the law nor legally empowered to thwart it.
Pete,
“We don’t need lawyers to point out that this is against the Constitution. A casual reading of the preamble tells us that.”
Yes we do. How else are the lawyers going to make a living? From now on, going to court will be a waste of time.
Marv – Right you are. Put aside your complaints on individual issues and Vote Blue. We can tend to those problems later, and even if we don’t solve them to everyone’s satisfaction, as I often write, consider the alternative – where the bad gets worse.
Gerald,
“Marv – Right you are. Put aside your complaints on individual issues and Vote Blue. ”
You’ve converted me.
Vote Blue!
There is nothing else we can do.
Maybe, lawyers will become poets. However, I need a little bit more practice. How about you?
Gerald,
Maybe the NFL players would better make their case, instead of a few kneeling during the playing of the Star Spangled Banner, they all yelled after the ending:…. VOTE BLUE!
It has to be either one or the other; or what good is FREEDOM?
In response to “Monotonous”, the ACA WAS a good plan, when we initially signed up in 2011-12, allowing my husband and I as freelancers (forced into such due to the recession) to be covered for the first time in over a decade.
We were forced from ACA this year when the current Administration eviscerated ACA policy guidelines, making premiums and out-of-pocket expense minimums UNaffordable for us. This was not a Democrat move. We lay this squarely at the feet of the Repug Party.
Miraculously, my husband’s temp agency employer allowed us into their health insurance plan. Otherwise, we would probably be declaring bankruptcy and losing our home or enduring penalties we cannot afford to pay.
It’s an endless unresolvable discussion as to whether Obama’s incrementalism or Bernie’s socialized medicine were right for their times.
The one thing that I suspect the two gentlemen would agree totally on is where we need to be ultimately.
I’m sure everyone on this blog remembers having affordable health care insurance, affordable health care, affordable test fees and even affordable surgery if needed. We could also afford necessary medications. I’m sure everyone on this blog also remembers NOT having CEOs who are paid annual salaries of millions of dollars who know nothing about health care, only making profits and Big Pharma who brazenly charge hundreds – sometimes even thousands of dollars PER PILL. Health care stopped caring about the health of Americans when all forms of health care became another corporation, solely in business to make money.
How do we rid this country of them and get back to the health care business of making people healthy and keeping them alive? The wealthy 1% will not willingly give up their profits to this end and the government officials on their payrolls will not forego their profit margin thanks to Citizens United. Argue all you want about Obamacare, ACA, Socialized medicine, one-payer insurance; the country is owned and operated by corporations and profits.
“There’s a reason the Republicans are frantically trying to load the federal bench–including the Supreme Court– with ideological conservatives: given Congress’ refusal to discharge its constitutional duty to oversee the executive branch, the courts are the only recourse for Americans opposed to the criminal enterprise that is the Trump Administration.”
Whatever the lower courts might accomplish; the highest court in the land has already ruled against them with Citizens United and looms over all. A large part of “the criminal enterprise that is the Trump Administration” is comprised of the health care corporation system with its CEOs and Big Pharma.