Donald Trump last week signed an executive order and took further administrative action that will weaken the healthcare coverage of millions of Americans. The president is required by Article Two of the Constitution to “take care that the laws be faithfully executed.” So are his efforts to undermine the Affordable Care Act unconstitutional?
Particularly since Congress, which is empowered to write American laws, declined to make similar changes to the Obama-era health law when Trump urged legislators to do so, most of the framers of the Constitution would presumably be appalled by these actions. Yet this is not just a problem with the current president. The expansion, and sometimes misuse, of executive power is a result produced in large measure by the framers’ choices to dilute accountability and responsibility in the federal government, and their designing a presidential system in which a minority party can regularly win.
Trump has mounted a two-pronged attack on the ACA following the failure of legislative repeal efforts. First, he issued an order that will weaken the regulations in the ACA requiring private insurance to cover certain essential services. This will allow some consumers to purchase cheaper plans that don’t cover very much. A subset of young and healthy people will have lower premiums, but premiums will shoot up for everyone else, as the market of people buying decent insurance becomes older and sicker. (And, of course, for young people who end up needing expensive medical treatment, what looks like a bargain will turn into a disaster.)
We know exactly how this will play out because Tennessee has used a loophole to allow barebones insurance to be offered to consumers. After weeding out the young and healthy, Tennessee’s market offers among the nation’s highest premiums on its health insurance exchange.
Although Trump’s order has no justification as public policy, it is probably legal. Barack Obama issued numerous executive orders designed to implement the Affordable Care Act, as well as taking aggressive action on issues like immigration and climate change after Congress failed to act. Given the complexity of the regulatory state and the strong tendency of Congress to gridlock, a rigid conception of executive power would probably be worse for democratic accountability and functioning governance. Policy-wise, there’s no equivalence between Obama’s attempts to make the Affordable Care Act work as intended and Trump’s explicit attempts to sabotage it. But in terms of formal executive power, there’s ample precedent for Trump’s actions. Legal challenges to Obama’s actions suspending some of the ACA’s regulations never got any traction.
Trump’s second action is even worse as policy and it also has a shakier legal foundation. Trump announced that he was ending subsidy payments to insurers that would give them incentives to cover poorer and sicker people without raising premiums on others. People buying insurance will bear the brunt of the action through higher premiums or deductibles. Since more buyers will be eligible for subsidies, the perverse effect of the action will be to insure fewer people while spending more money. (The funding might be restored by Congress: Republican Senator Lamar Alexander and Democratic Senator Patty Murray have reached a deal in which Republicans will be bribed not to end the payments if states are given more leeway to loosen the law’s insurance market regulations. Trump supports the agreement, although it is not yet clear if it will have the votes to pass the Senate or House.)
The withholding of payments presents potential legal problems. Nineteen state attorneys general filed suit against the administration, arguing that the administration did not comply with the procedures necessary to stop the payments promised by the law, and also that the action violated the “take care” clause of Article II. The former argument in particular is not frivolous, but the potential of these lawsuits is unclear.
While this kind of executive policymaking is not what the framers had in mind, it’s still going to become more common. The American separation-of-powers system always tends towards stasis. There are so many choke points: a bicameral legislature, the Senate filibuster, the presidential veto, and judicial review. When Congress is unable to act, executive power is likely to fill the vacuum.
The problem is compounded by the various ways in which the Constitution distorts democratic choice. Because of factors like vote suppression, gerrymandering, nearly unlimited campaign spending, and institutions that over-represent white rural voters such as the Senate and the Electoral College, Republicans have been able to lose the popular vote and still win elections. Winner-take-all elections, instead of proportional representation, mean that the slimmest of victories puts total power in the hands of the officeholders who did not attract many voters. Racially and culturally-polarised politics mean that most rank-and-file Republicans pull the lever for the party despite not agreeing with much of its economic agenda. Once in office, Republicans are committed to policies, such as the repeal and replacement of Obamacare, that appease the Republican donor class and the activist base, but not most Republican voters and certainly not Democrats and independents.
Republican Congresses are left incapable of fulfilling their incoherent campaign promises, such as repealing Obamacare’s regulations and subsidies without taking insurance away from millions of Americans. Caught between their base’s demand to repeal, even without a meaningful replacement, but fearing the wrath of voters in more moderate states, they ended up passing nothing. The inevitable outcome is the Republican president, elected by a minority and unconcerned with reaching beyond his base, enacting the right-wing’s demands by fiat.
When considering Trump’s randomly destructive style of policymaking, it’s worth remembering that in 2016 the plurality of American voters chose Hillary Clinton, the candidate who promised to faithfully execute the Affordable Care Act, only to be denied their choice by a mechanism the Constitution’s authors intended in part to curb “excessive democracy.” The framers feared the powers of the executive branch being abused, but the system they designed has allowed it to happen.