For years, Republicans complained that President Obama was a “lawless” president, engaging in executive actions or inactions that did violence to the constitutional order and Congress’s prerogative to write the laws. Ted Cruz even wrote a passionate article in a legal journal about it, declaring that Obama’s “repeated assertions of this power to suspend and dispense with duly-enacted laws violate the Take Care Clause and represent a profound threat to our constitutional checks and balances and, ultimately, to individual liberty.”
This wasn’t just an academic exercise. To prove their point, the GOP was willing to take Obama to court over this perceived lawlessness. The House of Representatives sued his administration over the payment of “cost-sharing” subsidies under the Affordable Care Act — that litigation is now in a state of flux — as did a coalition of states, led by Texas, claiming that Obama, in moving to protect the undocumented parents of American citizens and lawful residents, was transgressing his duty to enforce the immigration laws already on the books.
By Cruz’s and others’ accounts, the part of the Constitution that was in danger by Obama’s monarchic ways was the section of Article II that requires the president to “take care that the laws be faithfully executed.” In the Texas immigration case, lower courts never took the argument seriously, but the Supreme Court did, asking the parties to address whether Obama’s decision to spare from deportation certain low-priority immigrants was somehow a violation of his constitutional duty to execute the laws. The Supreme Court never got around to it: Justice Antonin Scalia died while the case was pending, the remaining eight deadlocked in the dispute, and we were left to wonder what today’s court really thinks about the ancient constitutional text.
But the advent of Donald Trump provides a fresh start. And his craven desire to let Obamacare explode could just be the perfect vehicle to test Republicans’ own theory of lawlessness against their president. “We’ll let Obamacare fail. We’re not going to own it. I’m not going to own it. I can tell you, the Republicans are not going to own it,” Trump reiterated Tuesday when asked about the failure of Trumpcare, the wildly unpopular and nearly dead plan to repeal and replace his predecessor’s main policy achievement.
Setting aside the sheer immorality of blowing up Obamacare because he can, Trump may be setting the stage for the American public to learn, under his presidency, what the Take Care Clause requires of him. Obama may have deprioritized the deportation of a subset of immigrants with deep roots in the United States, but he did so by relying on a lengthy memorandum from the Department of Justice’s Office of Legal Counsel, an implementation plan by the Department of Homeland Security, and extensive intra-Executive coordination. It was hardly an open-and-shut case that he lacked the prosecutorial discretion to exercise compassion, let alone that he was flouting existing immigration laws in doing so.
What Trump is doing, or refusing to do, is an entirely different animal. Obamacare remains the law of the land, and the Republicans’ failure to repeal it has only solidified its validity not just as a matter of public policy, but in the eyes of millions who depend on it for access to health insurance. For the Trump administration to want so flagrantly to see the law fail — whether by pulling already paid-for enrollment ads, willfully weakening the individual mandate, and taking other steps to hamstring its effectiveness — is the antithesis of faithful execution of the laws. Or as The Atlantic’s Garrett Epps, a constitutional scholar himself, quipped: “He has a constitutional duty to Take Care that the Laws be ruthlessly sabotaged.”
This self-perpetuating, self-inflicted death spiral turns the Constitution on its head. And thus states like New York, which have already intervened to save other aspects of Obamacare, would be well within their rights to take Trump to court over a law that he’s duty-bound to execute. There’s already talk that that’s in the cards: Deepak Gupta, one of the big-time lawyers behind a major emoluments challenge to Trump, told Reuters in April that a take-care lawsuit may one day become a reality. In the wake of Trump’s new threat that he wants to end billions in subsidies for low-income enrollees, that day may already be here.
When all is said and done, a federal judge may be reluctant to order the nation’s chief executive to play nice with a law his own party can’t repeal, but there’s no need to go there. A simple declaration of what the president’s constitutional duty is may be just what Trump and this country need.