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If President Trump follows the principles enshrined in his executive order on Obamacare, he will have done more to promote the rule of law in America in his first four hours in the White House than some presidents accomplished in four years.
Hours after taking the presidential oath of office on January 20, Trump signed an executive order titled “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal.” The order reiterates Trump’s campaign promise to repeal the Affordable Care Act (ACA) and instructs all executive departments and agencies to “exercise all authority available to them to waive, defer, grant exemptions from, or delay the implementation” of onerous ACA provisions. States, patients, and health care providers shouldering fiscal burdens, costs, or penalties imposed by ACA shall find relief, the order states. Agencies are to give states flexibility and encourage a “free and open market.”
All this is wonderful in the eyes of proponents of patient-centered, market-based health care reforms. But how many realize the greatest gift of Trump’s executive order is its instruction to continue enforcing ACA until the law is repealed?
Far from unilaterally abolishing or ignoring ACA, Trump’s order states, “In the meantime, pending such repeal, it is imperative for the executive branch to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.”
Trump did not order members of the executive branch to prevaricate or dodge duty. He ordered them to slow implementation of the ACA “to the maximum extent permitted by law.” This instruction suggests Trump rejects a jurisprudence evidently embraced by his predecessor, that the Constitution empowers the executive to ignore laws passed by Congress.
President Obama, eschewing the boring assignment of “waiting for legislation” approved by the legislative branch to reach the Oval Office, told reporters in 2014, “I’ve got a pen and I’ve got a phone.” This declaration of belongings confirmed Obama’s willingness to act over Congress’s head (and even his own head, constitutionally speaking). It also confirmed his willingness to ignore laws the Constitution required him to enforce.
Steve Friess identified Obama’s governing strategy of ignoring laws he disliked in a post for Politico in 2012. In 2014, The Daily Signal highlighted seven instances Obama ignored the law—three of them ignoring ACA—drawing from an extensive Heritage Foundation report detailing Obama’s refusal to enforce laws governing labor, welfare work requirements, nuclear waste, appointments, education, voter fraud, immigration, and drugs. Counts of the number of times Obama broke the law range from one to six dozen.
As the Heritage report argues, the “Take Care” clause in Article II of the Constitution grants the president discretionary powers to enforce and implement laws, but it does not grant authority to ignore laws. Hillsdale College professor Thomas West confirmed this reading of the Constitution in “The Executive Power and the Constitution,” a two-part online lecture made available to the public for free in 2016.
When the last field of Republican presidential candidates was being winnowed, many conservatives and libertarians feared Trump’s contempt for the law would surpass even Obama’s. Strict constructionists interpreting the Constitution according to the Framers’ original intent do not want a “Republican Obama” who flouts bad laws. We want a Congress that replaces bad laws with good ones, and we want an executive responsive to but not controlled by Congress or the Supreme Court.
In short, we would be ruled by laws, not whims. We want our leaders ruled by laws as well, first the Constitution and then laws consistent with the Constitution, passed by the people’s elected representatives, and signed by the president.
This is because, as the patriot Thomas Paine wrote in Common Sense in 1776, “… in America, the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
Trump’s executive order on Obamacare confirms Trump’s ascendency to the office of president was an inauguration, not a coronation. Down with ACA. Long live the law.
[Originally published at the Hill]