//  3/17/17  //  Commentary

I am delighted to be part of Take Care and look forward to engaging with readers and contributors over the years to come.  In this inaugural post, I offer some reflections on two of my own personal preoccupations—the executive obligation to faithfully execute the laws and partisan polarization as a stress on our constitutional system.

In his speech accepting the Republican nomination for President, Donald Trump promised that upon his inauguration Americans would “wake up in a country where the laws of the United States are enforced.”  So far, that has turned out to be true if you are an undocumented immigrant or anti-administration leaker.  If you are a polluter or predatory lender or tax cheat or ethics violator—not so much.

This hypocritical outcome was entirely predictable.  In appointing agency heads hostile to their own statutory missions, proposing disabling budget cuts to regulatory agencies, and generally reducing enforcement of disfavored laws, Trump is employing an old playbook of deregulatory Republican Presidents.  (For examples, see this essay I wrote in 2015.)  The question is how far President Trump will take this strategy—and in particular whether he will build on some unfortunate precedents set by the Obama Administration.

As you surely know, President Obama adopted bold and controversial policies to limit federal enforcement in two key areas.  First, after several states legalized marijuana as a matter of state law, the Obama Administration announced that enforcing federal marijuana prohibitions against state-compliant customers and businesses would be a low priority for the Justice Department.  Second, in two proposed programs (one ultimately enjoined by the courts), the Department of Homeland Security invited broad categories of undocumented immigrants—adding up to roughly four million people in total—to apply for a form of promised nonenforcement known as “deferred action.”

In addition, as “transition relief,” the administration delayed several key provisions of the Affordable Care Act (ACA), including certain coverage requirements for insurers and the “individual mandate” that requires everyone to obtain health coverage.

In a 2014 article on executive enforcement discretion, I argued that the marijuana policy was aggressive but defensible, while the deferred action programs and ACA delays crossed an important line.

The Constitution obligates the President to “take Care that the Laws be faithfully executed.”  This provision’s core meaning, in my view, is that the President cannot suspend or eliminate statutory prohibitions on his own authority.  Executive officials need not punish every violation; they can turn a blind eye to some infractions.  They may also set internal priorities when resource constraints preclude full enforcement.  Nevertheless, executive officials should not presume authority to adopt policies that categorically exempt broad sets of prospective violations from enforcement.  Doing so threatens to make executive policy rather than statutory law the central determinant of on-the-ground behavior.

How exactly to draw the line between priority-setting and policy-making—between permissible picking and choosing among cases, on the one hand, and impermissible disregard for statutory policy, on the other—is sometimes tricky.  Faithful execution is often more a matter of mindset and degree than any sort of bright-line rule.

Nevertheless, the marijuana policy struck me as permissible because it was hedged and caveated and framed entirely in terms of husbanding scarce enforcement resources for more urgent federal objectives.  The deferred action programs, in contrast, were designed to provide more definitive assurance.  And the ACA delays purported to eliminate legal obligations altogether—precisely what enforcement discretion alone cannot enable executive officials to do.

Now, of course, we have a new President with quite different policy inclinations.  How well do President Trump’s actions measure up by these standards?  The early answer is—not well.

To be sure, President Trump has launched a new immigration crackdown.  Trump even identified his purpose in one executive order as “ensur[ing] that our Nation’s immigration laws are faithfully executed.”  “We cannot faithfully execute the immigration laws of the United States,” he declared, “if we exempt classes or categories of removable aliens from potential enforcement.”

Yet Trump has shown no inclination to enforce other laws with similar rigor.  In fact, the President’s very first executive order launched a frontal assault on another important statute—the ACA.

His order directs executive agencies to exercise all available means to waive or eliminate penalties and burdens imposed by the Act.  (Importantly, Trump does not appear to dispute that the ACA is constitutional, as the Supreme Court held.) 

Assuming enforcement discretion is part of the “authority and discretion” that Trump expects agencies to exercise, this directive comes close to a green light for regulated parties to ignore the statute.  Admittedly, the administration has not announced any more specific categorical suspension of enforcement.  But the IRS has come close.  Though it had “put in place system changes that would reject tax returns during processing in instances where the taxpayer didn’t provide information related to health coverage,” the agency recently announced that it was scrapping this program—despite its obvious utility in inducing compliance.

It is hard not to suspect a cynical ploy here.  Even as Congress struggles to craft a replacement, Trump has asserted that Obamacare is collapsing on its own.  Halting enforcement could help his prediction come true.  If insurance participation drops, risk pools will deteriorate, causing premiums to rise, perhaps leading to an insurance “death spiral.”  That was why the ACA included the individual mandate in the first place—and also why the statutory scheme depends on the mandate being enforced.

Why should Trump enforce the mandate despite his distaste for the statute?  Because the ACA is the law of the land unless and until Congress replaces it.  For President Trump as for President Obama, the test of faithful execution—and for that matter the rule of law itself—is not the administration’s vigor in enforcing laws it favors.  It is the administration’s respect for laws it dislikes. 

This observation leads to a last, broader point.  For some time, partisan polarization has been promoting, on both sides, an instrumental, result-driven approach to legal and constitutional issues.  During the Obama years, many Republicans railed against the President’s supposed executive tyranny, decrying as a point of principle the President’s failure to faithfully execute disfavored laws.  Now, as Trump seeks to establish a muscular presidency, Republican office-holders willing to cross him have been few and far between.

President Obama pushed the limits of enforcement discretion more often than I would have liked.  I fear Trump may be worse.  Will anyone check him if he is?


Health as a Human Right, Medicare for All, and the Evolution of the American Health Care Debate

12/11/18  //  In-Depth Analysis

By Carmel Shachar, Alex Pearlman, and Glenn Cohen: The United States may be revisiting the debate around health as a human right

Take Care

Creeping Price Regulation

12/10/18  //  In-Depth Analysis

There's a consensus that the prices are too damn high for health care. The states can do something about it -- indeed, a few already are.

Nick Bagley

University of Michigan Law School

The Administration’s Recent Guidance on State Innovation Waivers under the Affordable Care Act Likely Violates the Act’s Statutory Guardrails

12/7/18  //  In-Depth Analysis

If the agencies proceed to approve a state’s application for a waiver in reliance on their recent guidance and discussion paper, the approval would almost certainly be set aside by a reviewing court.

Joel McElvain

Yale Law School