During his short tenure as president, Donald Trump has subjected the Constitution to a stress test the likes of which it hasn’t seen since Watergate. A Muslim ban. The firing of FBI Director James Comey. Ongoing special counsel and congressional investigations into Russian hacking of the 2016 election and possible collusion with the Trump campaign. Now, with another embarrassing failure of his plan to repeal and replace the Affordable Care Act, President Trump is upping this already destructive ante, promising to sit back and root for Barack Obama’s signature law to fail. If Trump follows through on this boast, he risks not only a health care crisis but a constitutional one as well.
On Tuesday, after Senate majority leader Mitch McConnell announced that he didn’t have the votes to repeal and replace the health care law, the president told reporters: “I think we’re probably in that position where we’ll just let Obamacare fail.” Constitutionally, that would be a disaster for all Americans.
That’s because, on Jan. 20, Trump placed his hand on a Bible and took the oath of office that requires him to “faithfully execute the office of the president of the United States.” That oath reflects the Constitution’s bedrock requirement in Article II that the president “shall take care that the laws be faithfully executed.”
For almost 200 years, Supreme Court precedent has held that, under the Constitution, a president cannot stop the enforcement of a law just because he doesn’t like it. In 1838, after a member of president Andrew Jackson’s cabinet refused to enforce a directive from Congress, the Supreme Court squarely rejected the contention that “the obligation imposed on the president to see the laws faithfully executed . . . implies a power to forbid their execution.” To find otherwise, the high court opined, “would be clothing the president with a power to control the legislation of [C]ongress, and paralyze the administration of justice.” In other words, a president cannot block, suspend, or thwart the execution of a validly enacted statute, especially one like the Affordable Care Act, which, as currently implemented, the Supreme Court found constitutional in 2012. Simply put, Trump is constitutionally obligated not to “just let Obamacare fail.”
At a minimum, if Trump lives up to his threat not to enforce the Affordable Care Act, it will lead to yet more lawsuits against him and his administration like those that have led federal courts to find his Muslim ban unconstitutional. Shirking his constitutional obligation to faithfully execute the laws, and thereby imperiling the health care market and the well-being of millions of Americans, will only bring the nation closer to a constitutional crisis.
Trump needs to pay the Constitution more than just lip service; he needs to pay it respect. Senate Republicans announced plans to vote next week to repeal the health care law. If this effort fails, Trump needs to accept his defeat on the Affordable Care Act repeal and work with Democrats to improve the law. He needs to abide by his oath of office, take care to faithfully execute the laws, and commit to making the Affordable Care Act work better for all Americans. Otherwise, the president risks embroiling the country in yet another unnecessary and damaging legal flash point of his own making.Edward J. Markey is a US senator from Massachusetts.