Trump’s healthcare sabotage sets up a separation-of-powers circus act

The legal test for whether a president’s act is constitutionally valid is pretty simple. The president is the national government’s chief executive, so his or her job is to execute – carry out – the law. And that law (meaning especially domestic policy), in turn, is to be made by Congress.

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So if the president’s act is authorized by Congress (and if Congress’s act is authorized under the Constitution), then the president’s act is valid. If the president’s act is contrary to a law passed by Congress, then it’s invalid. There are areas – military affairs and foreign policy, for example – where it’s not so simple, but in the realm of healthcare, that’s pretty much the whole analysis. (For anyone interested, this test for executive authority comes from Youngstown Sheet & Tube v Sawyer (Jackson, J., concurring)(1952).)

Donald Trump has purported to cancel, by executive order, payments required under the Affordable Care Act (ACA), aka Obamacare. The payments are called cost-sharing reductions (CSR’s); they are paid to health-insurance companies, and in return, those companies reduce premiums for people and families at or near the poverty threshold. The ACA, a law passed by Congress in 2010 and still in effect, requires that these payments be made.

But soon after the ACA was enacted, Republicans took control of Congress. And even though the ACA requires CSR payments to insurance companies, the Republican House of Representatives never specifically appropriated money for those payments. In other words, Congress never expressly directed the Treasury to release funds to make the CSR payments. So Republicans, ever creative with their subversion and sabotage when they lose fair and square, invented a new mechanism for neutering any law they don’t like, even if it’s a duly enacted law passed in accordance with Article I of the Constitution (the part about Congress): just don’t fund it.

It’s diabolical. But indeed, the Constitution does say that no money may be spent by the federal government unless it is appropriated by Congress (and appropriations must originate in the House of Representatives). So Republicans created quite a conundrum: the ACA requires that the CSR money be spent, but Congress never expressly set aside any money to make the payments.

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President Obama concluded that the CSR payments were required regardless whether Congress specifically earmarked money for them, so he found the money sitting around for other ACA obligations, like tax credits, and used some of that money to make the payments. Republicans in Congress sued, of course, and a trial-court judge in DC agreed with them that the payments couldn’t be made unless Congress explicitly appropriated the money for the payments.

That judge, however, put his own ruling on hold while the Obama Administration appealed, realizing that the ruling might be reversed by a higher court. In the meantime, we elected as chief executive a petulant man-child whose only policy objective is to destroy any evidence that Barack Obama ever occupied the White House. If Obama created it, it has to go, no matter how many Americans get torched along with the legacy of our first African American president.

Trump could have simply ordered his Justice Department (DOJ) to drop the ongoing appeal of the trial judge’s ruling. That would have made the ruling final and binding, and the government would have been required to stop the CSR payments. Instead, Trump kept making the payments (realizing that failing to do so would be politically costly) and kept running off at the mouth about how maybe he would sabotage the ACA in the future if his Republican Congress failed to repeal and replace it.

That gave Democratic stakeholders from more than a dozen states time to intervene in the appeal, which they did – successfully arguing that if the Trump Administration were to drop the appeal, many parties stood to suffer without any resolution of the CSR issue by a higher court. The Court of Appeals judges said that because Trump was so unpredictable in his behavior and vociferous about possible future mischief, they would permit the intervention of parties who would actually and reliably advocate on behalf of the millions who stood to lose if the CSR payments were terminated for good.

Not until now, when ACA repeal has died its final death, did Trump get up the gumption to actually cancel the payments. But Trump can’t just drop the case anymore. Even if his DOJ abandons the appeal, it will stay alive because of the Democratic intervenors who prophesied that Trump would try to sabotage the ACA by abandoning the appeal and simultaneously canceling the payments (thereby destabilizing insurance markets to the point of collapse).

So here we are. Trump has now cancelled the CSR payments, saying that he agrees with the trial judge that they’re unconstitutional. But there’s still a case – a case that Trump can’t get rid of anymore – before a higher court, which might rule that the payments are required under the ACA, which itself appropriated the money for the CSR payments by requiring that the payments be made in the first place. (That’s a compelling argument, by the way.)

And all the while, there are nine people in black robes watching very closely. Pay special attention to Justices Roberts and Kennedy when this gets up to the Supreme Court. This story might not end the way Trump had hoped.

-bb

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