President Trump and the White House are explicitly entertaining the idea that he could not only allow Obamacare to fail but also grease the skids when it comes to that supposed outcome.
And some say this would violate the very oath of office that Trump pledged when he was sworn in. But does it?
The president has tweeted in recent days about possibly withholding federal subsidies for insurers that assist low-income customers — “cost-sharing reductions,” or CSRs. As NBC's Benjy Sarlin does a good job explaining, insurers are required to help these customers with out-of-pocket costs, and starting in the Obama administration, the government has reimbursed insurers for this cost.
But Republicans have argued that this arrangement is illegal and have sued. Trump has continued to make the payments — which would amount to about $7 billion in 2017 — but he has also made no promises about continuing to do so and is openly suggesting that the payments may stop. Incidentally, this comes as Trump is also urging the GOP to “let Obamacare fail” in the wake of the Senate GOP's failure to pass a replacement. In other words, it looks a lot like he's threatening to force the law to fail.
Trump suggested in a pair of tweets in recent days that the payments amount to bailouts for insurers.
White House counselor Kellyanne Conway, meanwhile, said Sunday on Fox News that Trump would announce soon whether the payments would continue. “He's going to make that decision this week, and that's the decision that only he can make,” she said.
As president, Trump swore to “take Care that the Laws be faithfully executed,” in accordance with the Constitution. And some have suggested that withholding these payments would violate that oath by effectively sabotaging the law.
Even Republicans have warned that such a move would be a bad call. But would it really be constitutionally questionable?
Here's what we can say: There is no legal requirement that Trump make the payments, but the fact that they are already being made and he might rescind them would be the clearest sign yet that he's willing to force Obamacare to fail, rather than simply let it. He may claim it's a principled stand, but the implications are unmistakable, and some experts say it would violate the oath he took.
“The question of at what point a president's supposed enforcement of a law transforms into illegal legislative action is a hard one,” said Michael Gerhardt of the University of North Carolina School of Law. “But when the president is making clear he is deliberating not enforcing a duly enacted federal mandate, he has made clear that he is violating the Constitution.”
George Washington University law professor Jonathan Turley, who was lead counsel on House Republicans' lawsuit against the payments — which succeeded in district court but is on hold — says the Obama administration's action was unilateral, so Trump's can be, as well.
“The Obama administration ordered billions of dollars to be paid out of the Treasury without congressional authorizations and in violation of the Constitution,” Turley said. “When it comes to unilateral executive action, what a president giveth, a president can taketh away.”
He added: “To the extent that the Trump administration cuts off the money unilaterally ordered by Obama to be paid to insurance companies, Trump would be on stronger ground since that money was never appropriated by Congress and was found by the district court to have been unconstitutionally paid out from the Treasury.”
Mark Major, an expert on presidential powers at Penn State University, said the move would violate Trump's oath. But he also said that's not entirely unusual for a president.
“President Trump would definitely be sabotaging Obamacare by not paying the CSRs,” Major said. “He's explicitly said so himself, because he thinks it will give him leverage over the Democrats. Trump's not paying the CSRs definitely runs afoul of his constitutional duty to faithfully execute the laws of the land.”
Major compared such a decision to the Obama administration not defending the federal ban on same-sex marriage, called the Defense of Marriage Act, or DOMA. And he said it's up to Congress to force the issue.
“Whether it's informed by morality, practicality or politics, most presidents do not faithfully execute every law on the books,” Major said. “Think Obama's refusal to defend DOMA in the courts or vigorously enforce federal marijuana laws at the state level, recognizing that some states have legalized it. This is why Congress is the crucial factor here. They can force the president to act — most dramatically, through the threat of, or voting on, articles of impeachment for undermining the constitutional order — or take the CSRs out of the president's hands and pass a law to make the payments automatic. Congress's actions or lack thereof is largely what shapes the scope of presidential powers.”
So there's a lot to unpack there, legally speaking.
But what's pretty clear at this point is that Trump being seen as forcing Obamacare to fail would be a political loser, if not necessarily a legal one. An April Kaiser Family Foundation poll found that just 19 percent of people wanted the administration to do what it can to make the law fail so that it can be replaced later. Three-fourths (75 percent) wanted the administration to do what it can to make the law work.
And that may be the biggest takeaway here. If Trump cancels those payments, he may not be in legal or constitutional jeopardy, but he would certainly risk looking like he's doing something that is very controversial and overwhelmingly at odds with the will of the American people. In that context, the fact that he's even entertaining such a move is pretty remarkable.