The Trump Administration is once again thrusting America into deep uncharted, troubling waters.
This week, in the wake of another wave of POTUS disastrously divisive statements, actions and inactions, we may face an unprecedented constitutional crisis: a president sabotaging a valid law.
The crisis has perhaps best been summarized by Noah Feldman, law professor at Harvard University Law School, “Letting Obamacare Fail Would Break Trump’s Oath“:
“Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly his plan to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking.
“Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president ‘shall take care that the laws be faithfully executed'”.
“… It’s well worth calling out Trump’s unusual and very possibly unprecedented statement that he wants to make an existing legal regime fall apart. That’s unconstitutional — and it is serious business.”
The President has already done great damage to the ACA — and to millions of Americans insured under its provisions. His many months-long efforts to unwind Obamacare are well described in two recent detailed media reports:
Adding to the vast uncertainties and anxieties already created by such ACA sabotage, the President is now also withholding crucial commitments for the federal government to continue to pay subsidies to insurers that cover low-income customers; and to confirm that the requirement that healthy people buy insurance will be enforced.
There is little doubt that in a generic sense, this Trump anti-ACA campaign is abusive of many millions of Americans. The crucial question — again in uncharted waters — is does it rise to constitutional abuse of power?
Michael Zeldin, a former federal prosecutor, recently parsed criteria for impeachment and indictment of a sitting president, “Abuse of power, not obstruction, should keep Trump’s legal team on edge” :
“There is no debate that, if a president’s corrupt use of powers of his office were to rise to the power of a high crime or misdemeanor, the president’s conduct could be referred to the House of Representatives for consideration of articles of impeachment.
“Scholars have long debated whether a sitting president can be indicted while in office … Eric Freedman of the Maurice A. Deane School of Law at Hosfstra University argues that the notion that a sitting president is immune from prosecution is ‘inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.’ The Justice Department disagrees.”
Much depends on intent. Trump’s intent on imploding Obamacare, mainly because it is Obama –
care — just as his intent on immigration bans, environment and other issues — has been made clear in his tweets and other public statements.
As with the many other toxic elements of this administration — conflicts of interest, emoluments, ethical violations, lies and distortions — can Americans hope for ACA relief from Congress or the courts? Impeachment or forced-resignation by the recalcitrant Republican Congress is virtually out of the question. Judicial relief, via congressional committees and special counsel investigations seems promising but hardly imminent. And time is of the essence.
But there is hope.
The outpouring of American public opinion against the GOP bills to repeal and replace ACA was no doubt instrumental in the bills’ failure. If sabotage of the ACA is to be stymied – and such future abuses of power are to be discouraged – like public exertions will be necessary. And very soon.