//  5/3/17  //  Commentary

In my posts so far this week, I’ve considered the ways in which the health care bill that President Trump thinks he is advocating is in fact an entirely different animal from the bill actually under consideration in the House. Today, I’ll address the implications of the President’s failure to understand the legislation before him. If a President does not understand what he is signing into law, how can he possibly “take Care that the Laws be faithfully executed”? 

Two caveats are in order.  First, there are stronger and weaker versions of this question.  It is undoubtedly true that no President – indeed, no legislator and no policy expert – can fully predict the implications of a law, even if they have a clear command of the details of the legislation. Times change, other laws are passed, market actors weigh risks differently than anticipated, etc. But it is quite another thing to sign a bill that you believe certainly protects patients with pre-existing conditions when in fact it enables states to waive those protections—or a bill that you incorrectly believe allows insurance companies to sell plans across state lines.  

Second, I am not a constitutional law scholar.  So this is not really a constitutional law argument. I make no claim that the President would in fact be in violation of the Constitution if he signed a bill into law thinking it to be an entirely different bill. Rather, I mean to reflect more generally on the minimum required information and analysis that ought to be in the President’s possession before he makes important decisions about a law in order to fulfill this duty.

In my view, to comply with the spirit of the Take Care Clause, the President must have a basic understanding of the terms of the legislation he is signing into law and an appreciation for the range of possible effects. What does it mean to have a basic understanding?  Exactly how much information is required?  How specific must his appreciation be?  These are difficult questions, to be sure.  But if you asked the President what the health care bill does to Medicaid and if he said “nothing” (in keeping with a promise he made during the campaign), when in fact it cuts the program by $880 billion over 10 years and kicks an estimated 14 million Americans off the program, that would not be a “basic understanding.”

But these points about substantive appreciation may feel unsatisfying. After all, substantive appreciation for a law must be understood on a spectrum, and line-drawing is rarely a productive exercise (and it’s never an easy one).  Instead, we might consider the procedural prerequisites that would enable us to feel comfortable with a President’s understanding of legislation.  And there are at least two factors here we might consider. 

First, procedures must exist within the Executive Branch that function to provide necessary information to the President.  Agency staff and officials may be called upon to brief the President and write memos about the policy options and content of legislation.  OMB may provide budgetary estimates.  And OLC may provide legal analysis.  The Executive Branch contains these officials and makes use of these procedures precisely to lend expertise to generalist lawmakers, including the President.  After all, I suspect few of us would be troubled if Presidents did not read and exhaustively cross-reference the often-impenetrable statutory language—but only as long as they demonstrated through their solicitation of information and asking of relevant questions that they appreciated the substantive legislation before them. 

Second, the President must actually use these procedures and take advantage of the resources available. Has he been briefed on the legislation by the relevant agency officials, and perhaps by key members of Congress? Have they actually informed him about its different provisions, other options that were also considered, and a range of likely effects?  Have relevant memos been written and provided to the President?  Unfortunately, it does not seem that this President values the thorough briefings that would be necessary to satisfy that requirement.

I cannot know for certain what is in our President’s mind.  But a President who so clearly misrepresents the facts as he has done in his most recent interviews about health care either knows the truth and is lying, or is not sufficiently “taking care” to know the truth.

With so many rapid developments in healthcare law and policy these days, I cannot say exactly what tomorrow’s post will cover.  Most likely, I will either 1) ask whether the Executive Branch knows that we can hear their public statements on cost-sharing payments or 2) consider whether the President’s recent interviews can and should be understood as giving content to administrative waivers and statutory implementation. Votes are welcome.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care