//  10/17/17  //  Quick Reactions

Over at Vox, I offer an argument that Trump's ACA sabotage violates the Take Care Clause. I argue that, whatever scholarly divisions may exist about the Clause's application, this is the limiting case. The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it. An excerpt follows. Please click the link for the full argument.

https://www.vox.com/the-big-idea/2017/10/17/16489526/take-care-clause-obamacare-trump-sabotage-aca-illegal

Modern American history has never seen as full-scale an effort to sabotage a valid law as we have with President Trump and the Affordable Care Act — a law whose legality has been upheld twice by the US Supreme Court.

The president has a legal obligation, under Article II of the US Constitution, to “take Care that the laws be faithfully executed.” That means he must make sure that our laws are implemented in good faith and that he uses his executive discretion reasonably toward that end.

His agencies likewise have a legal obligation, under the Administrative Procedure Act — the statute that sets the rules for our entire federal regulatory apparatus — not to use their power to engage in arbitrary action.

The intentional, multi-pronged sabotage of the ACA that we have seen over the past nine months — reaching new heights since attempts by Congress to repeal the law failed — violates both Trump’s constitutional obligations and quite possibly the obligations of his Department of Health and Human Services.

Trump does not get to say that he can best help the law by killing it and thereby forcing Congress to start afresh. His obligation is to “take care” that the laws that are already on the books are carried out. Since he has flouted this obligation, lawsuits by individuals and states harmed by the damage he causes may now be in order.

To be sure, the Take Care clause is rarely invoked. Indeed, it does not appear ever to have been used successfully in modern times as an offensive tool against a president. Cases are rare because most experts agree that the president must have discretion with respect to how he enforces a law; drawing lines that separate when that discretion is exercised reasonably and, instead, when it changes too much of the law to be “faithful” to it (as the clause requires) is extremely difficult.

But whatever divides exist about invoking the Take Care clause, this is the extreme case in which it is clear-cut that the clause has been violated. Far from using his power to faithfully implement the ACA, the president is actively using his power to destroy it. He does not hide his motives.


Versus Trump: An Impeachment Primer...

10/3/19  //  In-Depth Analysis

Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Whistleblower Scandal Contains Reminder of Last Scandal: Time for a New One?

9/27/19  //  Commentary

Although Trump isn't deliberately using each new scandal to distract from the last one, the phenomenon is nonetheless maddening. It's like a game of Bizarro World Whack-a-mole in which each time you whack a mole another hammer emerges that somehow enables the same mole to escape.

Michael C. Dorf

Cornell Law School

Versus Trump: Can You Hear The Whistle Blowing?

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens