Trump’s Sabotage of Obamacare Is Illegal

by Nicholas Bagley — Tuesday, Aug. 14, 2018

So runs the headline of an op-ed that I co-authored with Abbe Gluck of Yale Law School in the New York Times. Here’s an excerpt:

Never in modern American history has a president so transparently aimed to destroy a piece of major legislation. What makes Mr. Trump’s sabotage especially undemocratic is that Congress has repeatedly considered repealing the law — and repeatedly declined to do so. In addition, the Supreme Court has twice sustained the Affordable Care Act in the face of major legal challenges. Mr. Trump’s attempt to destroy the law any way he can is an unconstitutional usurpation of power.

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.

Whatever you think of the lawsuit—as we say in the op-ed, it’s not clear that “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'”—I’m glad that it’s drawn attention to the unconstitutionality of the president’s deliberate efforts to sabotage the ACA. We’ve become inured to so much over the past 18 months. We shouldn’t be complacent about this.

@nicholas_bagley

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Nicholas Bagley

Nicholas Bagley is a Professor of Law at the University of Michigan Law School.

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