If the past is any guide, President Trump will sooner or later tweet out an admission that he instructed the Justice Department to attack the Affordable Care Act in court in order to enlist judges in a policy fight he lost in Congress.
This would not be a particularly shocking thing to learn. Last week, DOJ filed a brief asking the courts to void the ACA’s pre-existing conditions protections based on an argument so frivolous, even some of the law’s most ardent legal critics have condemned it, and career DOJ attorneys have refused to make it in court.
In a letter to Congress explaining why the Justice Department would decline to defend a law Congress passed, Attorney General Jeff Sessions let on that “the President has concluded that the statute is unconstitutional and made manifest that it should not be defended.”
All that’s left is for Trump to confess that he stepped in and ordered government lawyers to make indefensible arguments because he simply can’t accept that he lost the political fight over repealing the ACA in Congress.
In some ways what Trump is attempting to do sets an alarming precedent: that the president can seek to nullify laws he doesn’t like on the basis of distemper and nothing more. But in another way it is perfectly consistent with just about all of the major decisions Trump has made as president.
Trump has developed a reputation for saying quiet part loud, for turning subtext into text. But this is a quirk that rests uncomfortably alongside his more consistent tendency to govern through pretext—to be the most bad-faith operator in a political movement built on a foundation of bad faith.
His pervasive lying—his abusive unwillingness to level with the public about his motives, and about whose interests he’s serving—has tended not to bother about 40-45 percent of the country. Some of his supporters plainly relish it. The only good news is that by deploying this dishonest political style in a bank shot effort to take people’s health insurance away, the costs of lying constantly might finally catch up to him.
Trump really did seem to believe he could run the government like his own personal imperium. Like the Trump organization. He finds the limits on his power endlessly frustrating, and seeks out arenas (such as the pardon power) where he faces the fewest constraints.
A president who has no patience for process and rules will inevitably look for ways around them, and Trump has settled on the frequently counterproductive tactic of making lawyers compromise themselves in pursuit of the impunity Trump thinks he deserves.
For most people, the bungled Muslim ban is a cautionary tale and should have been a learning experience for Trump. Instead it practically became a template for everything that has come since. Trump promulgated the executive order banning travel from Muslim-majority countries heedlessly, and with its anti-Muslim animus largely undisguised. Trump ran on a platform of banning Muslims from entering the U.S., and government lawyers have found it very difficult to convince judges that the “travel ban” is a good-faith national security exercise rather than an unconstitutional policy rooted in religious discrimination.
With the Muslim ban, which Trump conceived on the campaign trail, he blurted out the truth first and concocted the pretext later. Since then he’s refined the process only enough to confess his true motives after his deeds are done instead of before. He asked Sessions and Deputy Attorney General Rod Rosenstein to provide him grounds to fire FBI Director James Comey; they came up with the ludicrous pretext that Comey had violated DOJ protocols in ways that harmed Hillary Clinton; and Trump took them up on it, only to admit in a televised interview days later that he actually fired Comey because of the Russia investigation.
The president later ask Sessions to justify rescinding DACA—the Obama-era program for protecting undocumented immigrants brought to the U.S. as children—and what Sessions came up with was an argument that DACA had to go because a different deferred action program was unconstitutional, even though no court had declared it to be.
Trump most recently imposed tariffs on U.S. allies using powers Congress delegated to the president to protect the national security. But when pressed by Canadian Prime Minister Justin Trudeau to identify the national security threat Canada posed to the U.S., Trump blamed Canada for burning down the White House during the War of 1812 (it was actually the British), and eventually retreated to the claim that he imposed tariffs on Canadian imports because Canada imposed tariffs on American dairy.
The pretexts are endless and endlessly flimsy, and, if you aren’t enamored of Trump, they are among the most psychologically taxing aspects of Trump’s presidency. His dismantling of the world order takes a toll above and beyond the damage of the policy because, as Trudeau noted, the false pretenses are insulting, if you know that’s what they are. The health care context might be the one context where the insult becomes clear to even some of his supporters.
The argument goes like this: In 2012, the Supreme Court upheld the ACA’s individual mandate under Congress’s taxing power. But when Congress passed Trump’s corporate tax cuts last year, it set the mandate’s tax penalty at $0.00. A group of GOP-led states, backed by DOJ, thus argues that the mandate is no longer an exercise of the taxing power, so the courts must eliminate it. And because the mandate is meant to prop up the laws pre-existing conditions protections, those protections must be “severed” as well.
Trump’s approval numbers have floated upwards slightly since late last year, in large part because the public’s anger at his effort to repeal Obamacare subsided. People moved on and forgot. By asking the courts to finish the job for him, and on such transparently cynical grounds, Trump has given Democrats a foothold for reminding everyone, and Republicans a reason to turn on him. His legal argument makes liars out of GOP members of Congress who promised that in supporting Trump’s tax cuts they were not voting to take people’s pre-existing conditions protections away. It’s also a tell that whatever happens with this lawsuit, Republicans will resume their legislative assault on the ACA if they have an unexpectedly good showing in the midterms.
The realms of politics and law have always overlapped, and Trump is not the first president to advance legal arguments that serve unrelated political ends. But none until Trump has treated the law exclusively as an instrument of politics—a nuisance to be circumvented, or a power to be abused. This strategy has not always worked out well legally for him, but he has generally found it to be politically useful. This time he miscalculated.