//  2/18/20  //  Commentary

The Trump administration is playing a dangerous blame game with the federal courts. Because judicial appointments have made and will only increasingly make the federal courts a friendly audience for the administration, the administration has started to ask the courts to do what the administration is unwilling or unable to do itself. For example, the President insisted he had sympathy for the dreamers, but his administration ended the Deferred Action for Childhood Arrivals program that protected them because they maintained that the courts would have forced them to end the program anyways. And after the administration failed to persuade Congress to repeal the Affordable Care Act, it has asked the courts to invalidate the entire law for it. 

By shifting the blame for these deeply unpopular policies to the federal courts, the administration hopes to avoid accountability and political blowback. Yet that tactic might end up alienating some Justices on the Court who may be nervous about the Court shouldering all of the blame.   

Although the President repeatedly promised to treat the Dreamers with heart, his administration announced the end of the DACA program that protected them. The initial memo that ended DACA stated only that the administration had concluded the program was illegal in light of decisions from the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court. But those courts never decided the legality of the initial DACA program; they had only weighed in on the Deferred Action for Parents of American citizens program. 

The administration’s stated reasons for ending DACA therefore made little sense. The real explanation for the administration’s choices was also not hard to see: Because DACA is popular and the President had pledged to support it, the administration did not want to own up to the fact that it had decided to end DACA because the administration had objections to the policy itself. By insisting that the program was illegal, the administration avoided taking ownership over the decision to end DACA, and instead placed the blame on the courts.

The administration has also tried to foist responsibility for repealing the ACA on the courts. After unsuccessfully attempting to convince Congress to repeal many of the ACA’s major provisions, the administration managed only to get Congress to reduce the penalty for failing to purchase health insurance to zero dollars. But Congress left the rest of the ACA (including the Medicaid expansion and the protections for people with preexisting conditions) in place.

Not content to take a loss, the administration proceeded to court, where it is arguing that Congress’s reduction of the penalty for failing to purchase health insurance made the ACA unconstitutional, and that courts should invalidate the law in its entirety.  A district court agreed and invalidated the entire law. A court of appeals agreed that Congress’s amendments made one of the ACA’s provisions unconstitutional, and left open the possibility that other provisions (and perhaps the entire ACA) had to be invalidated as well. Here too, the administration is arguing that a policy it wants to end is illegal, and it is asking the courts to end the policy, rather than taking ownership over the decision itself.

But some courts and some Justices on the Supreme Court might be wary about doing the administration’s bidding and taking the heat for the administration’s deeply unpopular policies. At oral argument in the DACA case, for example, Justice Ginsburg asked the administration’s lawyer, Noel Francisco, if the administration was trying to avoid “stand[ing] up and say[ing] this [ending DACA] is the policy of our administration”—and that the Trump administration “do[es]n’t like DACA and we’re taking responsibility for that, instead of trying to put the blame on the law.”

In response, Noel Francisco insisted that “We [the Trump administration] own this.”

 But the President often does not listen to his lawyers. And there is no reason to think that he and his administration will in fact own up to the policies they are trying to foist on the Court. On the same day that his administration filed papers urging the Supreme Court to let the lower courts decide that the entire ACA, including the ACA’s protections for people with preexisting conditions, must be invalidated, the President tweeted “I stand stronger than anyone in protecting your Healthcare with Pre-Existing Conditions.” Earlier that day, he had said “I was the person who saved Pre-Existing Conditions” and that “I will always protect your Pre-Existing Conditions.”

There is no reason to think the President will stop with these lies. He is likely to continue to insist that he supports DACA and protections for people with preexisting conditions, while urging the courts to invalidate them. And he is likely to blame the courts for ending those policies, rather than taking responsibility for doing it himself. The Court should consider whether it is willing to let him get away with that when it decides this Friday whether to grant the House & Democratic-led states’ petition for certiorari in the ACA case.


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

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

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