by John Lawrence
What would be an appropriate response to a decision by the President of the United States to inflict deliberate harm on tens of millions of Americans? The question may seem far-fetched, even extreme, but depending on a decision by President Trump, it might well become one that Democrats in Congress must answer.
Under the Affordable Care Act, the federal government is supposed to make $7 billion available to subsidize health insurance premiums for millions of low-income Americans. While Republicans have sued to prevent the payments – itself a startling decision from a Party that had railed about fictitious “death panels” – the law stands, and under the Constitution, the Executive Branch has a clear responsibility to ensure that the laws are enforced. Even some key Republican lawmakers, like Rep. Tom Cole (R-OK) are demanding that Congress provide the funding for the premium supports.
Officials at the Department of Health and Human Services, which is presided over by Secretary Tom Price (himself a physician and obdurate opponent of ACA), issued a statement that the subsidies would be paid in conformity with the law. An “incensed” Trump reportedly ordered HHS to reverse its position, asserting that he wants to use the subsidies to force Senate and House leaders Charles Schumer and Nancy Pelosi to negotiate weakening the ACA. “I don’t want people to get hurt,” Trump professes, although he acknowledged he was willing to inflict the pain unless Democrats subvert the proudest achievement of their legislative careers.
It is a brutal and startling intimidation unsuited to any President: holding a gun to the heads of millions of low income Americans, threatening to pull the trigger unless Democrats agree to undermine their constituents’ health security.
It also may be unconstitutional. Like all presidents, Trump swore an oath to “preserve, protect and defend the Constitution,” a document which charges the President with enforcing the laws, regardless whether he embraces them. All presidents choose to selectively enforce laws. (Barack Obama, it will be remembered, declined to defend in court the Defense of Marriage Act, a law he believed was unconstitutional, but he did not refuse to enforce it until the Supreme Court agreed with his interpretation of its unsuitability).
Moreover, the 14th amendment requires equal protection of the law, and a decision to “hurt” millions of Americans based on their income (and disproportionately, on their race and ethnicity) surely violates this fundamental guarantee.
I am not one to blithely throw around the idea of filing impeachment resolutions. Richard Nixon richly deserved to be run out of office on a rail for manipulating the FBI and Justice Department to cover up his involvement in Watergate, but other cases have been little more than thinly veiled political retribution. The decision in 1868 to impeach Andrew Johnson was based on his violation of the Tenure of Office Act, one of the lesser of his many political offenses. Bill Clinton pretty clearly lied about his involvement with Monica Lewinsky, but few agreed it merited removal. Public demand for impeachment has wisely been resisted by congressional leaders. George W. Bush invaded Iraq on erroneous data which many observers knew was inconclusive, leading some to demand his removal, but Speaker Nancy Pelosi wisely steered her Caucus away from an ugly and unwinnable constitutional battle and towards a victorious 2006 electoral campaign.
Impeaching Trump became an obsession with some hardline opponents even before he took office based on the sheer ugliness of his campaign rhetoric and cynical strategy, both deplorable but not sufficient grounds for triggering Congress to initiate the removal procedure. The pre-Inaugural passion to remove Trump from the Oval Office reminded me of the “Impeach Reagan” pin a friend wore in his lapel on Election Night, 1980, a remnant from a failed gubernatorial removal effort.
But should he follow through on his threat to willfully impose financial hardship and medical jeopardy in defiance of the law, Trump may cross the line. That he would do so to seek political leverage makes his threat even more vile. Should he follow through and undermine the health security of millions of Americans, Congress would have more than sufficient grounds to debate removing him from office.
Harvard Law School’s constitutional law professor Noah Feldman recently pointed out that presidents need not actually break a law to commit “high crimes and misdemeanors,” the constitutional standard for removal from office. The president’s actions “don’t have to be actual crimes that are on the statute books at all,” Professor Feldman argues. “Abuse of power is anything the president does that he can only do by virtue of being president that threatens the basic freedoms and capacities of other people … actions performed in an official capacity … that violate the basic principles of the government.” Refusal to follow a law, upheld by the Supreme Court, so as to cause ill-health, suffering and death to citizens would, in most peoples’ book, meet the professor’s standard for “abuse of power.”
There is obvious political gain and risk from moving in such a confrontational direction. On the upside, motions of impeachment would energize much of the Democratic base that would just as happily impeach Trump for the ridiculous color of his improbable comb-over. Resolutions would focus attention on the impact of Trump’s heinous action and likely energize portions of the base impacted by such a decision. On the downside, many Republicans would cry foul and the country would be thrown into a furious round of the partisan confrontation that exasperates much of the electorate.
On balance, the fight would be worth strongly considering should Trump withhold the payments. The Affordable Care Act has never been more popular; Congress and Trump tried, and failed, to weaken it within the legislative process. It would therefore be highly presumptuous – perhaps even impeachable – for the President to exercise his Executive powers to subvert the law and endanger the health and welfare of millions of his fellow countrymen. Democrats would be fighting on a matter of constitutional principle and on behalf of Americans whose security has been undermined by the intentional misuse of presidential authority. That much seems unimpeachable.