October 14th, 2017

Trump, defender of the Constitution re Obamacare

You may think the title of this post is sarcastic. After all, as commenter “Bill” wrote today, in regard to Trump’s recent announcements on Obamacare :

I don’t know enough about the changes, yet, to know if they will be bad or good.

I do know that the “if congress won’t act, I will” shtick is just as abominable to the spirit of our system of three co equal branches and checks and balances as it was when we were all howling about Obama ruling by EO…

Maybe congress is completely ineffective…It’s still their job to do the legislating, regardless of if they are good at it and regardless of all the great ideas any given President might have. If they won’t do it we can vote them out. But as a nation it seems we’ve learned to just vote in Presidents who dig the “stroke of the pen, law of the land. Pretty cool huh?” method. It doesn’t end well.

That’s all quite true—and I would have no disagreement if it were relevant in this case. However, that’s not what’s going on with Trump’s end to the cost-sharing insurance company subsidies, although much of the MSM would have you think otherwise.

For clarification on the subject, please read National Review (most decidedly not a Trump-friendly establishment) on the subject. Take a look at this by Andrew C. McCarthy, this by David French,this by Chris Jacobs, and this by the editors.

If you are familiar with National Review, its editors, and those particular writers, you would have to conclude that theirs is not some knee-jerk support of Trump. That’s not their bag; au contraire. And yet they are saying that what Trump did regarding payment of the insurance subsidies was not only constitutional, it redressed Obama’s unconstitutional actions and was something that—if a president was actually intent on following the Constitution—was not even discretionary but obligatory.

I really could quote any of those four articles to illustrate, but I’ll choose McCarthy’s because in the past I’ve almost always found him to be fair, knowledgeable, and clear. The title of his piece is “Trump Faithfully Executes Obamacare; Media, Democrats Go Nuts”:

It’s ironic. Notwithstanding the many outrageous, mendacious things the president says and tweets, the press is aghast that his “fake news” tropes against mainstream-media stalwarts resonate with much of the country. Well, if you want to know why, this latest Obamacare coverage is why. What Trump has actually done is end the illegal payoffs without which insurance companies have no rational choice but to jack up premiums or flee the Obamacare exchanges. The culprits here are the charlatans who gave us Obamacare. To portray Trump as the bad guy is not merely fake news. It’s an out-and-out lie…

The media-Democrat narrative that President Trump is imperiously flouting the rule of law has it backwards. In cutting off the insurance-company subsidies, Trump is enforcing the ACA as written, consistent with his constitutional duty to execute the laws faithfully. It was President Obama who usurped Congress’s power of the purse by directing the payment of taxpayer funds that lawmakers had not appropriated.

Almost all the articles on the subject I’ve found so far deal with Trump’s order regarding the subsidies; that’s what the main hue and cry from opponents seems to have involved. I’m not sure about the constitutionality of Trump’s other changes in Obamacare, because I’ve only located one article that discusses them, but that author says:

Third, [Trump’s] order directs agencies to consider giving employers more flexibility in designing and offering health reimbursement arrangements (HRAs) to their employees. Prior to Obamacare, HRAs were health care accounts employers could create for employees to fund a broad array of health care expenses on a pre-tax basis, including individual health insurance premiums. The Obama administration, however, banned employers from using HRAs and other arrangements to fund individual market premiums pre-tax…

The Trump administration is on sound legal footing to roll back this ban. As far as I’ve seen, I’m the only attorney to subject Obama’s ban to serious legal scrutiny before Trump took office. In a detailed white paper on the issue, I concluded the ban “contradicts prior federal court and agency holdings and, moreover, conflicts with provisions in the ACA that show Congress intended to continue allowing employers to fund individual premiums pre-tax.” Simply put, the ACA never empowered the Obama administration to bar employers from funding individual health insurance. Trump’s executive order will correct this.

An executive order going against explicit provisions of the statute establishing Obamacare would most likely be wrong in the sense of unconstitutional. But to undo a ban Obama established by executive order (a ban that conflicts with provisions in the ACA) is quite the opposite.

Looking-glass world.

13 Responses to “Trump, defender of the Constitution re Obamacare”

  1. Mike K Says:

    I have believed for some time that the way to get rid of Obamacare and its market distorting features is to make it optional. The only people happy with Obamacare are the Medicaid recipients which had its income limits loosened. Fine, let them have Medicaid and let everyone else, 85% of the population before 2008, have a choice of insurance vs HSAs and cash for routine care. Then, block grant Medicaid to the states. The governors and the people of each state can then decide how much blood and treasure to hand over to the non-productive of the state.

  2. Sergey Says:

    Socialists are in their bait-and-switch game again. First, they mandate unworkable economic plan and then, when it fails, blame somebody else for its failure. Bolsheviks did that by imposing price-fixing for essential foods well below market price, and when suppliers went out of business to avoid losses, blamed “profiteers” for famine resulting from their own actions. Maduro in Venezuela did the same. And now Democrats blame Trump for inevitable collapse of ACA built into this law legislated by them only.

  3. FOAF Says:

    It says something about Obama that Trump has to issue an EO to correct his illegal and unconstitutional actions.

  4. Bill Says:

    That’s a good point Neo. I saw David French’s article. As it’s pretty clear, I’m a big non-fan of governing by EO. Maybe even a little knee-jerk about it. But I can understand the argument for the EO in this case.

    One reason I’m against EOs is that we get into this bull in a china shop thrashing back and forth as administrations change. Sweeping changes one way, then the other, and American citizens caught in the flying crockery.

    We’ll see the results of this. Trump’s pretty good at propaganda so he may be able to continue to tie what’s about to happen to Obama, but if things really spiral out of control the tag “TrumpCare” may stick.

    (clears throat) – “We’ll see”

    On the bright side, we can all say “Merry Christmas!” again! Our long national nightmare is over! 🙂

  5. AesopFan Says:

    Not by coincidence?

    http://neoneocon.com/2017/10/14/literary-leftists-bertrand-russell-on-the-bolsheviks

    Betrand Russell was a socialist, but he wasn’t impressed by the Communists:

    “I am compelled to reject Bolshevism for two reasons: First, because the price mankind must pay to achieve Communism by Bolshevik methods is too terrible; and secondly because, even after paying the price, I do not believe the result would be what the Bolsheviks profess to desire.”
    * * *
    Substitute your choice of ideological fudge-words (socialism, progressivism) for Bolshevism; and your choice of any Leftist agenda item (Obamacare in this case) for Communism.
    * * *
    Sergey Says:
    October 14th, 2017 at 1:19 pm
    Socialists are in their bait-and-switch game again. First, they mandate unworkable economic plan and then, when it fails, blame somebody else for its failure. Bolsheviks did that by imposing price-fixing for essential foods well below market price, and when suppliers went out of business to avoid losses, blamed “profiteers” for famine resulting from their own actions. Maduro in Venezuela did the same. And now Democrats blame Trump for inevitable collapse of ACA built into this law legislated by them only.

  6. AesopFan Says:

    Worth bumping this from yesterday’s post:
    http://neoneocon.com/2017/10/13/trump-untweaks-obamacare/#comments

    Irv Says:
    October 14th, 2017 at 2:24 pm
    One president uses his pen in a clearly unconstitutional manner (so said a federal court) to do things no congress would vote for.

    Another president uses his pen to stop the unconstitutional power grab of the previous president.

    People complain that they both are equally guilty of ruling by the pen. Welcome to Wonderland!
    * * *
    Irv, you know that only one party is entitled to make unconstitutional power grabs.

    Updated Ben Franklin (with the word “legal” to be taken seriously but not literally):

    “Power grabs are always legal in the first person — our power grabs. It is only in the third person — their power grabs — that they are illegal.”

    I’m also unpersuaded by the complaints that “Trump isn’t working with Congress” since he has now on several occasions “remanded” the issues, for which he has rolled back Obama’s illegal actions, to Congress for legislation.

    He isn’t supposed to write the laws, just to execute them. Expecting (and now forcing) Presidents to do the former is a usurpation that dates back to at least Teddy Roosevelt, if not further.

  7. AesopFan Says:

    Bloomberg isn’t happy, and seems to contradict McCarthy about the lawfulness of Trump’s move.
    Are the two of them talking about the same clause in the ACA, or is Bloomberg conflating the two fundings (one lawfully appropriated, and one unlawfully dispensed)?

    https://www.bloomberg.com/view/articles/2017-10-13/a-staggering-blow-to-u-s-health-care

    “Just hours after announcing some new ways to destabilize the health-insurance markets created by the Affordable Care Act, on Thursday President Donald Trump delivered a direct blow to a crucial aspect of the law itself: No longer will the federal government reimburse insurance companies for reducing out-of-pocket costs for poorer customers, as the law requires them to do.”

    Here’s McCarthy, quoted above:
    “In cutting off the insurance-company subsidies, Trump is enforcing the ACA as written, consistent with his constitutional duty to execute the laws faithfully. It was President Obama who usurped Congress’s power of the purse by directing the payment of taxpayer funds that lawmakers had not appropriated.”

    I don’t know which is correct or if they are talking past each other, or if Bloomberg is flat-out lying.

  8. Bill Says:

    “He isn’t supposed to write the laws, just to execute them.”

    AMEN! My great hope for a long time has been for us to get a boring President who does just that.

    “Expecting (and now forcing) Presidents to do the former is a usurpation that dates back to at least Teddy Roosevelt, if not further.”

    I’m not expecting the President to write the laws. I do expect him to have an agenda and focus on getting that agenda enacted (and be good at doing so). What I’m saying is that we can’t pretend the President is not the leader of his party which controls all three branches, and I think it’s reasonable to acknowledge that his modus operandi of publicly insulting and undermining his own party members, of undermining the legislation itself (calling the House version of repeal/replace that he himself championed as “mean”, for one small example), being completely unable to bring along the senators on the fringe – in fact, actively antagonizing senators he needs, etc, has been counter-productive.

    You hired him to do things. You hated it when Obama did things through EOs. I realize there are good arguments to defend the current one, but Trump is not laying down a good track-record of pushing his agenda through legislative means. Even if Lou Dobbs thinks his is the most accomplished administration in modern history.

    Trump will possibly have a weakened caucus in 2018 if trends continue (especially since he’s actively planning, it seems, to primary members of his own party who haven’t been sufficiently docile). And I don’t really think he has a good grasp on how constitutional government works. So – my prediction, disagree if you’d like – is that we’re going to see Trump more and more “getting things done” through EOs. Basically a repeat of Obama but from the Nationalist/Populist/Trumpist side. That may result in things you like but the next time we get a leftist in office the precedent of ruling by executive fiat will be even more cemented.

  9. AesopFan Says:

    Here is my laugh line of the week (in bold).

    http://www.powerlineblog.com/archives/2017/10/speaking-of-sabotage.php

    On May 12, 2016, Hulse reported Judge Collyer’s decision finding the subsidy payments illegal in “Judge backs House challenge to key part of health law.” Hulse quoted the aptly named Obama White House spokesman Josh Earnest doing his Baghdad Bob routine:

    Josh Earnest, the White House press secretary, dismissed the judge’s ruling as another instance when Republicans have sought to overturn the Affordable Care Act through the courts. He said the dispute should be settled by voters, not judges.
    * * *
    Seems to me they argued that a bit differently when the topic was same-sex marriage, and abortion in the distant past IIRC.

    If the courts had done their job in the beginning (looking at you, John Roberts), we wouldn’t now be “overturning the ACA” at all.

    BTW, Josh: it was settled by voters in both the MA election before Obamacare was rammed through (“I’ll be the vote against” Scott Brown won even there), and in the Presidential one just past.

  10. Geoffrey Britain Says:

    In the comment neo cites, Bill states, “If they won’t do it we can vote them out.”

    Here in this comment section, in response to “He isn’t supposed to write the laws, just to execute them.”

    Bill states, “AMEN! My great hope for a long time has been for us to get a boring President who does just that.”

    he then states, “I do expect him to have an agenda and focus on getting that agenda enacted (and be good at doing so). What I’m saying is that we can’t pretend the President is not the leader of his party which controls all three branches”

    Other than the Judiciary, a long term project, voting in a Republican majority has resulted in minimal changes. A Republican Pres. who merely executes the laws will result in a continuation of the status quo in which we march a bit slower toward the Collective. Demonstrated by Trump’s attempt at a travel ban approved by the Obama administration.

    The only agenda that the GOPe will approve is one that continues the status quo. Demonstrated by the Republican majority’s failure to repeal Obamacare.

    Finally, appointing more conservative judges does not equate to the Republican Party controlling the judiciary. Demonstrated in several instances by the activist leftist judge’s denial of Trump’s clearly constitutional actions.

  11. Bill Says:

    Finally, appointing more conservative judges does not equate to the Republican Party controlling the judiciary.

    Fair point GB.

  12. AesopFan Says:

    The headline says it all.

    https://www.redstate.com/streiff/2017/10/14/democrats-sue-obamacare-subsidies/

    Democrats Sue To Force President Trump To Break The Law And Ignore A Court Order
    Posted at 10:00 am on October 14, 2017 by streiff

  13. BrianE Says:

    “Even if Lou Dobbs thinks his is the most accomplished administration in modern history.” – Bill

    Add me to that list. Now his is the most accomplished, at this point, largely because of the unprecedented move by the previous administration to pull the country to the left.

    Didn’t Obama himself say he was going to “fundamentally transform the country?”

    So, undoing the damage inflicted previously is somewhat of a low bar.

    And some/much of what is being undone is not requiring EOs, but merely re-writing regulations. And the fact that the details of legislation passed by Congress is subject to the whims of an administration is a fault lying at the feet of Congress.

    President Trump has done the Republican party a favor– by identifying that the party does not control a majority of the senate.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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