Trump's ACA Sabotage and the President's Constitutional Duty to Take Care that the Laws be Faithfully Executed

Abbe Gluck

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 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.


Posted 4:48 PM by Abbe Gluck [link]

Voting With Their Feet

Gerard N. Magliocca

Advocates of states'-rights often point out that an advantage of federalism is that people can move from a state where they are dissatisfied with public policy to a state that they prefer. The prospect that people or businesses will relocate is often more effective at constraining majority opinion (say on tax rates or regulatory policy) than state constitutional provisions or internal political action.

In the case of Puerto Rico, we may see a different example of people voting with their feet. Citizens who are unhappy with the national response to their plight after a natural disaster could move to the mainland, where they will gain the right to vote in national elections. (This would not, of course, be the reason for their move--just a byproduct). And this diaspora may have a significant political impact depending on its size and destination (for example, Florida). You would think that the fear of such an exodus would provide an adequate incentive for the Trump Administration to provide assistance. The President of the Jets, though, may simply not want to help the Sharks.
Posted 10:28 PM by Gerard N. Magliocca [link] (45) comments

Anti-Contrarianism

Mark Tushnet

Posted 10:22 PM by Mark Tushnet [link]

Not King Tut's Tomb, But . . .

Gerard N. Magliocca

(Cross-posted at Concurring Opinions)

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington's notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice's Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw "Corfield v. Coryell" as a heading followed by pages of notes about the case. (Over on Concurring Opinions, you can see a picture of the first of these journal pages.)

What do these notes tell us about Corfield? One revelation is that Washington's initial view with respect to privileges and immunities was the opposite of what the opinion ended up saying. Corfield concerned a claim that a New Jersey statute barring non-residents from harvesting oysters and clams in state waters was unconstitutional, among other reasons, for violating the Privileges and Immunities Clause by making a distinction between state residents with respect to a privilege. The Court rejected this argument, concluding that no privilege was involved. Washington's notes on the case, though, say "I am inclined to think that it [in other words, harvesting oysters and clams] is a privilege within the meaning of this article of the Constitution. If it be not, then the right to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state."

Another significant insight is that Washington's thinking was shaped by an 1812 New York case, Livingston v. Van Ingen, in which Chancellor Kent discussed the Privileges and Immunities Clause briefly. The notes state that Washington found this case persuasive on the point "that the citizen of each State shall within every other state have equal privileges or rights as the citizens of such state have the words all privileges of citizens being equivalent to equal privileges." The actual opinion in Corfield, though, does not cite the Livingston case at all.

I will have more to say as I work through other portions of the journal. I will also think about how to make this material available as widely as possible without treading on the interests of the Chicago History Museum. Anyone, of course, can go there and look at the journal.         
Posted 10:34 PM by Gerard N. Magliocca [link] (27) comments

A Primer on the DACA Rescission

Marty Lederman

Read more »
Posted 10:23 AM by Marty Lederman [link]

Our correction and apology to Professor Tillman

John Mikhail

Simon Stern
Posted 8:30 PM by John Mikhail [link]

The Authority of the Court

Joseph Fishkin

The Justices of the Supreme Court are nine of the most powerful people on the face of the earth.  Yet it seems to be their lot to be forever anxious that exercising their power might undermine it. Some Justices seem to fear—at least, in certain select sorts of cases, and more on that below—that they are still the weak third branch from 1789, hobbled by the lack of purse or sword.  But the Court has since obtained a thing arguably at least as good: the widespread belief among Americans—an unusually legalistic and litigious bunch—that the Supreme Court stands for justice, fairness, the Constitution, and the rule of law.   This widespread belief is precious and consequential.  But, perhaps the public is fickle, or so the worry goes; perhaps this belief is something the Court could squander by straying out of its lane into matters that are too “political.” And so, on a day when the Court sits at a historic inflection point, with a big decision to make about whether to police partisan gerrymandering as a justiciable violation of the Constitution, some Justices are worried.  As one Justice put it, “continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication”; this ought to lead us to view “with deep concern” a judicial intervention in how states draw their district lines.
Read more »
Posted 5:48 PM by Joseph Fishkin [link]

Getting the 25th Amendment on the Record

Gerard N. Magliocca

On Friday, HHS Secretary Tom Price was thrown to the tarmac. This means that there are now two Cabinet vacancies, as DHS has been without a head since General Kelly left to become White House Chief of Staff. Cabinet secretaries come and go from every Administration, of course, but there is one special aspect of these vacancies in the Trump Administration.

Why? Because some people (with either buyer's remorse or seller's exasperation) think that Section Four of the 25th Amendment should be invoked to remove the President. While I think this is a terrible idea, when the next Cabinet nominee is before the Senate for a confirmation hearing, a perfectly appropriate question would be "What is your understanding of that provision?" or "What standard would you apply if asked, pursuant to Section Four, to declare the President incapable of performing his duties?" Perhaps the answer will reflect the pre-2017 view that Section Four was only meant to address clear physical illnesses, or perhaps the answer will be something else. But we might learn something, as all members of the Cabinet are part of the jury in that special case.
Posted 5:29 PM by Gerard N. Magliocca [link] (21) comments

The Enduring Significance of the Defeat of “Repeal and Replace”

David Super

Posted 2:13 PM by David Super [link]

Why the Court can't really solve the problem of fair representation

Sandy Levinson

Great hopes are being placed by many that the Court will help to staunch the cancer on American democracy that is partisan gerrymandering.  I certainly hope there are five Justices who agree that Wisconsin (and many other contemporary states) are acting unconstitutionally.  But it is a mistake to believe that even your favorite opinion (whatever that might be) would truly alleviate the problems posed by the House of Representatives.  It is doomed to be "unrepresentative" in many important ways so long as it remains within the stranglehold of the 1842 congressional act, reaffirmed in 1967, that requires single-member districts.  What is needed, in all states with more than, say, six representatives, is multi-member districts with candidates elected on the basis of proportional voting. This would not only go far to eliminate the ravages of contemporary partisan gerrymandering, but would also assure, say, that Republicans in LA would be able to elect a representative, just as Democrats in West Texas would finally get some genuine representation.

From one perspective, single-member districts doesn't present a "constitutional problem" at all, because they are the result of a congressional statute that could presumably be repealed, to be replaced with a requirement that states adopt multi-member districting and proportional voting.  But we all know that there are no conceivable circumstances under which the House of Representatives would ever vote for such legislation, even assuming the Senate and President would go along.  Nor, as a practical matter, can one envisage Congress proposing a constitutional amendment along these lines, for the very same reason.  (Now, it would take only 1/3+1 of House members to keep the status quo.)  Were the US like California or Nebraska (a decidedly non-crazy state), "we the people" could organize to support a constitutional initiative-and-referendum to reform our ever more indefensible system of "representative government."  But, of course, thanks to James Madison and his associates' fundamental mistrust of popular sovereignty, there is not a scintilla or an iota of direct democracy in the US Constitution, unlike 49 of the 50 state constitutions--Delaware is the once exception.  So, therefore, the only way to alleviate the problem in which conscious gerrymandering is only the very visible tip of an iceberg is through a constitutional convention.

My hunch is that at least some of you will agree that the House of "Representatives" is becoming ever more an oxymoron, and even that the proposal, advocated by FairVote, of multi-member districts and proportional voting, is a good idea.  BUT not via a constitutional convention.  So we are doomed to continue to be liked in the vise of an unrepresentative and undemocratic Congress because we are scared stiff of the kind of democratic politics that a constitutional convention would generate.  This is the present American dilemma.  Since most of us don't really believe in the genuine possibility of democratic government, which requires some degree of faith in "the people," instead we produce a market for unscrupulous demagogues, like our current President, whose only saving grace is his manifest incompetence as an actual governor.  But in the future, without basic constitutional reform, we'll get far "better" demagogues, as it were, who will learn from Trump's mistakes.  In any event, the last thing we should do is to continue believing that the Court will save us.  It could make things marginally better if it strikes down the pernicious Wisconsin gerrymander, and one should be grateful for small favors.  But that's all it would turn out to be in the absence of a national conversation, which we're simply not having, about what might constitute "representative government" in the 21st century in a divided country of 320,000,000 people where. more people live in each single-member congressional district than lived in the largest American state circa 1790.
Posted 4:45 PM by Sandy Levinson [link] (52) comments

More on Puerto Rico

Sandy Levinson

As part of the blog about our new book, Fault Lines in the Constitution, my wife Cynthia and I have just posted a discussion about Puerto Rico.  It doesn't add very much to Gerard's excellent post, save that we hope that at least some of our audience includes the teenagers to whom our book is directed and their teachers.  I do suspect that this will be a decisive moment in the relationship between the US national government and what is now the world's largest remaining colony (defined by the absence of any voting representation in the metropolitan government, unlike, for example, the French territories).  One can only imagine what would be happening if Puerto Rico, which is the same population roughly as Connecticut, had that state's two senators and five members of the House (not to mention seven electoral votes).  I would think, at the very least, that events of the past week have weakened the attraction of Commonwealth status, and I will be curious, should this turn out to be the case, if the defectors support statehood or independence (or, of course, independence should a bigoted Congress reject statehood because the dominant language of Puerto Rico is Spanish.  And, of course, it would be extremely interesting, to put it mildly, to see what the response of the US would be to a truly serious secessionist movement patterned after 1776.
Posted 4:25 PM by Sandy Levinson [link] (7) comments

The Supreme Court's New Term

David Gans

Posted 2:22 PM by David Gans [link]

Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Sandy Levinson

It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times.  Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me.  I confess I am very pleased about that.  But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution.   As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting."  Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program.  I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power.  Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself.  We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.

Everyone knows that the hardest achievement is to get from 0 to 1 with regard to a public issue.  For years now, the number of mainstream pundits willing to engage in serious discussion about constitutional defects has been zero.  Now we have one, and my fervent hope is that Ms. Goldberg will spark the long overdue discussion that we are so desperately in need of.  My conservative friend Seth Lipsky just posted a welcoming editorial about Goldberg in the New York Sun website (again, for some reason I can't link to it), in which he takes issue.  So perhaps the number in one day has gone from zero to two.  

As usual, I'm willing to allow comments, but I fervently hope that everyone will first log on to the NYTimes site and read Ms. Goldberg's column before commenting.  Let me say, incidentally, that I was heartened by the comments to Gerard's very important posting on statehood for Puerto Rico.  Almost uniquely, I felt that everyone was genuinely in conversation with one another and not simply attempting to score cheap (and completely predictable) political points.  Puerto Rico presents really difficult issues, which are almost certainly going to get every more complicated.  Will the response of Puerto Ricans to mainland indifference be to encourage a switch of "commonwealth's" to supporters of statehood, in order to get some genuine political clout that they now lack, or, instead, will it promote support for secession from the American Empire a la 1776, and would we allow it?  Would Republicans in fact support statehood, whatever their platform says, given the high likelihood that it would result in two Democratic senators and five Democratic representatives?

Ms. Goldberg, incidentally, is also courageous enough to treat the issue of secession with some seriousness, interviewing Gov. Jerry Brown about potential developments in California.  It will be really interesting to see where she chooses to focus on in the future, but her debut, from my perspective, was auspicious in every conceivable way!
Posted 11:22 PM by Sandy Levinson [link] (62) comments

Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press

David Pozen

Posted 11:53 AM by David Pozen [link]