The Affordable Care Act, despite countless extreme makeovers by the Obama administration, a few amendments by the courts, some pruning by the Trump administration, and a significant defanging by last year’s tax cut, is still law. Nevertheless, as the ACA faces yet another lawsuit, the Department of Justice has declared that it won’t defend the law in court. In fact, Donald Trump’s DOJ is supporting an argument in court against the law.
This is a serious deviation from the normal role of the executive branch, whose job is not to decide what ought to be law, but to faithfully execute the law as it is. Such a deviation has never happened before—except the time Barack Obama did the exact same thing a few years ago.
The Defense of Marriage Act was a 1996 law that passed with majority support from both parties, and Bill Clinton, despite his own flexible ideas about marriage, signed it. DOMA set into federal law the traditional definition of marriage, and made it clear that states had no obligation to recognize same-sex marriages.
Barack Obama campaigned in 2008 claiming to support that legal setup. Then suddenly, he flipped. When the case US v. Windsor came before federal courts, the Obama administration refused to defend the law. This was, in essence, unprecedented. There have been exceptions when a law lacked any non-frivolous defenses, but that certainly wasn’t the case with DOMA. Instead, the principle on which the Obama administration was acting was this: If we hate a law, we don’t have to defend it or execute it.
And that seems to be the operative principle behind the Trump administration’s decision to go along with the latest suit against the ACA. The ACA’s individual mandate was constitutionally dubious: Congress was claiming the right to force people to buy something (health insurance), which, by the way, couldn’t be bought across state lines.
The Supreme Court in 2012 contorted itself into finding the mandate constitutional by calling it a tax. So the Republican tax bill of last year reduced the tax to $0. Now some states are suing to say that the mandate, no longer a tax, is unconstitutional, and that its being integrally tied to the rest of Obamacare, the entire law is unconstitutional. And now the DOJ has said it won’t defend Obamacare, just as Obama didn’t defend DOMA.
So this is a perfectly typical episode of the Trump administration: Trump does something eye-catching and even norm-breaking, which is declared unprecedented, but is in fact precedented by a Democratic predecessor’s norm-breaking actions.
That Obama did it too, though, doesn’t make it okay. The Obama administration’s legacy is largely the mutation of the executive branch into a superlegislature. With Obamacare this is most obvious. He unilaterally delayed, revised, and even repealed many provisions of the law that bore his name. Heck, his IRS even changed the words “established by the State” to mean “established by the state, or by anyone, really.” Trump should not embrace that legacy but try to reverse it.
The executive becoming a superlegislator sounded great to Democrats after they lost control of the House in 2010 but still controlled the White House. It clearly appeals to the Trump administration, and it will appeal even more if Democrats take the House in November.
But it’s deeply unconservative for the executive to expand beyond its role of executing the laws. Firstly, it’s not good for the government to transform into something the Constitution didn’t prescribe. The more the government is unshackled by the Constitution, the more perilous our liberty is.
Secondly, letting the executive decide what ought to be law is a way of setting us on a path of constant drastic alternation in government. If what the law is becomes dependent on who the president is, then the “rule of law” becomes meaningless.
If anyone in the Obama administration attacks Trump for not defending the law, that person is a hypocrite. But if the Trump administration won’t follow the Constitution, then it can’t claim to be a friend of conservatism — or of the republic.
