Governing by Executive Order: As Obama goes, so goes Trump

This was the week of  the Trump executive order presidency.  Frustrated with his own inability to

govern and work with his Republican Congress, Trump used executive orders to dismantle the Affordable Care Act (Obamacare) regarding contraception, minimum coverage for health plans, and subsidies for the poor.  If the Obama presidency is precedent, it is not clear that Trump has the authority to do all this.  Instead, one legacy of Obama may be passing on to Trump a weaker presidency when it comes to the use of executive orders.

As candidate, Donald Trump criticized Barack Obama for governing by executive order, bypassing Congress and instead leading by fiat. Now that Trump is president executive orders look good to him. Democrats lauded Obama’s efforts to do an end run around Congress, which Republicans condemned. Now the reverse is the case.

Consider first who has used more executive orders.  According to CNN, by October 11, into his first year in office, Obama signed 26 executive orders–the fewest of any president going back to Eisenhower.  Trump has already signed 49–the most since Lyndon Johnson and on pace to be more than any president since Franklin Roosevelt.  Trump has become the executive order president.  For his supporters this is no doubt good–it is a sign of taking charge and being a leader.  But the criticisms that applied to Obama apply to Trump–it is side stepping the Constitution or at the least,  it is illegal or demonstrates contempt for the concepts of checks and balances and separation of powers.

At least this is what many Republican attorney generals thought when Obama was president.  Presidents have no inherent powers.  Their authority derives from either Article II or the Constitution or what Congress has delegated to them via the Administrative Procedures Act and other laws.  Executive orders in many cases carry the force of law and once issued, especially if they go through  a rule making process,  cannot easily be repealed without going though a series of procedures.  When Obama issued executive orders regarding immigration and rules for power plants, Republicans successfully challenged them in court with decisions that limited presidents going forward.  Among the principles these lawsuits established  is that presidents may not use executive orders to sidestep laws made by Congress.

This may exactly be what is happening now with Trump. Unable to get Congress to do his bidding when it comes to repealing Obamacare, he is governing by edict.  In some cases the orders seek to alter Obama executive orders, in others they go against congressionally-authorized law.  But in both cases, Trump  needs to do more than issue an order.  No president, including Trump, can say  “Make it so” like captain Picard from Star Trek, and make it happen.  Already Democratic attorney generals are using the same tactics against Trump their Republican counterparts used against Obama.  Time will tell if the legal results will be the same.

The Lessons of the Health Care Repeal Failure: It Sucks being an Adult

Scores of lessons are to be had from the failure of Trump and the Republicans to repeal the
Affordable Care Act (ACA or Obamacare).  One of the most important is that governance is hard, or that it really does suck when you are in charge and have to be an adult.  This is the alternative reality that both Trump and the Republicans live in, and it is not clear they have learned anything from their mistakes...and it is also not clear that the Democrats have either.
Obamacare is flawed and it needs to be fixed.  It failed to do much when it came to the overall cost curve facing health care in the US (as a percentage of the GDP) and it created premium problems for those who made too much to qualify for subsidies but who were not employed or rich enough to afford to buy their own insurance.  Many of these individuals were Trump supporters–the individuals left behind by the changes in the American economy over the last generation and which neither political party helped.
However, the Republican goal in repealing Obamacare was never about fixing it.  The same was truth with Trump.  If there was one defining or uniting goal of the Republicans in the 50+ times they voted to repeal the ACA when they knew Obama would veto it, it was that they wanted to obliterate the president’s signature accomplishment simply to deny him a political success.  The same is true for Trump.  It was never about the flaws in the ACA, having a better plan, or even something as noble or principled as ideological belief in free markets and less government, it was simply to play politics, mobilize a hostile Republican base, and simply negate Obama’s legacy.  In Trump’s first six months as president, the few accomplishments he has had have all been aimed at erasing the Obama legacy.  Cancelling the Trans Pacific Partnership, railing against the Iran Nuclear Deal, banning transgender from the military, and arguing that the 1964 Civil Rights Act does not extend to sexual orientation, all had that singular focus.  There was no alternative theory, policy agenda, or grand plan regarding what to do.  The narrative was entirely negative.  All this works, perhaps, when in opposition, but not as a prescription for governance.
Many will point to the divisions between moderate and conservatives within the Republican Party as the reason why the ACA repeal failed.  There is some truth to that.  But in general, the GOP and Trump lack a governing agenda and vision for what they wish to accomplish.  In addition, there is a lack of leadership from Trump down to McConnell and Ryan.   Real leadership, as presidential  historian James MacGregor Burns defines it, is authority guided by principle.  Neither Trump nor  GOP leadership  displays that.  This leadership is about respecting the Constitution, its procedures and rules, it is about understanding checks and balances and separation of powers.  None of this is understood, especially by Trump.  He still thinks he is a CEO and not the president.  His first six months in office  demonstrate a startling ignorance of what it means to govern and there is no indication that he has learned any lessons from his failures.  He thinks, as in the case of a tweet saying transgender are barred from the military–that such pronouncements are governance and binding as law or policy.
The failure to repeal the ACA is a crisis of leadership in many ways.  It was Trump who never had a vision for what he wanted thinking that the art of the deal was s imply threatening and blustering others around.   He never understood how to negotiate.  Moreover, when push came to shove, his misogynist statements about women and saying prisoners of war were not real heroes perhaps came back to hurt him when Susan Collins, Lisa Murkowski, and John McCain voted no.  They had good reasons to oppose the ACA repeal bills, but how much was payback we shall never know.  But for the other Republicans who voted against the repeal, they were among the few adults in the Party who saw the consequences of what the bill would do.  However, for the 49 Senate Republicans who voted for repeal, they still failed to appreciate or care about how what they did would hurt not just Americans in general, but their own constituents.
The infighting in the Trump presidency is further proof of a lack of leadership.  Lacking leadership, everyone is going in their own direction and for their own interests.  No one seems to have loyalty to anyone, and that includes Trump.  The lesson if at all Trump learns from his failures is that others are to blame and that the Apprentice solution–“You’re fired”–is the solution.  Alea  iacta est–the die is cast on this administration and there is no sense that things will get any better.  No one seems to be growing up, taking responsibility, acting like an adult because, frankly, that sucks for this administration.
But the Democrats should not be so gleeful.  They seem in the Trump and GOP failures a 2018 success, but that approach of thinking Republican ineptness as the road to power is what cost them their leadership.  Faintly the Democrats realize that, trotting out a meaningless promise of a “Better Deal,” a narrative devoid of real substance and policy.  Democrats yet again seem to think that being “Republican Lite” is their salvation, instead of their problem.
The lessons of the ACA repeal failure demonstrate that it is hard being in charge.  Governance and leadership ask people to be adults who care about others, who care about the country, and who are capable of looking beyond simple personal self-interest and partisan advantage.  Right now, it is not clear that there are many elected officials in Washington who gets that.

It Sucks Being In Charge: The Lessons of Trumpcare

It’s hard to be in charge of the government.  It comes with responsibility, much like being an adult.
 Taking care of the government comes with a fiduciary responsibility to act with care for the public good, much like being a parent comes with it responsibility to look after children.
This is just one of the many lessons that will not be learned by Trump and the Republicans as a result of their failure to repeal Obamacare.  It was so easy to vote 50+ times repeal it when it did not matter, but once the reality of owning the issue and having to be accountable for it was here, the Republicans simply failed.  They failed in part because they had become the party with a negative narrative.  By that, Trump and Republicans ran successfully in their opposition to the status quo, except they had no alternative vision of how they wanted to govern.
Part of the problem is that many of the Republicans along with Steve Bannon  have a negative theory of the state.  Their’s is not the night watchman state of minimalism, it is even more profound in terms of see the state as the enemy.  It is kind of hard to govern and be in charge when you actually do not like the machinery of power that you are holding and your aim is to dismantle it.    Another problem with the failure to repeal the Affordable Care Act with a Republican alternative is that the Affordable Care Act already was the Republican alternative.  How do you out-Republican the Republican alternative?
But the failure to repeal the ACA goes deeper than health care.  Political power and influence is not stagnant; it either increases or decreases but it never stays the same.  Richard Neustadt’s the power of the presidency is the power to persuade was on full display in the health care fiasco.  Any president, including Trump, should be at the strongest in the first 100 days.  Securing their first legislative victory is important for so many reasons, including showing the political capital one has.  Herr Trump and even Speaker Ryan expended enormous political capital and failed.  Next to immigration, repealing the ACA was the signature theme of Trump and the GOP.  If there was anything they should have been able to do it should have been this.  Yet the failure here was multifold.
For all who elected Trump because he was a total outsider to Washington, guest what?  It takes insiders to govern and to know how to move legislation.  Trump had none of the requisite skills to move legislation.  He also showed the limits of his ability to negotiate when in fact, he did not negotiate. He threatened Republicans legislators and failed.  He is weaker because of that because they are no longer afraid of him.  Presidents, as I have argued, cannot simply order people around and think they will obey.  This is especially true of Congress.  Moreover, as any good negotiator will tell you, real bargaining is a non-zero sum game, it is not about bullying people around.  Trump had nothing to offer anyone to vote for the bill except his wrath and that was not enough.  The art of a deal requires dealing and Trump did not do that.
Trump and the Republicans also seemed to think that a bill that originally took over one year to pass and which had six years of implementation history could easily be replaced in two weeks. This brief time frame was not enough to vet the bill, to build coalitions, to flesh out the unanticipated consequences.  In so many ways it failed to learn the lessons of why health care reform failed under Clinton and succeeded under Obama.
Moving forward Trump seems already bored with health care reform and plans to move on.  He has said the Obamacare will die of its own accord and will do nothing to fix it.  Guess who is most hurt but Obamacare’s failures?  The rural and working class who voted for Trump and the Republicans.  Doing nothing hurts his supporters the most, but had his reforms passed they too would have hurt his supporters the most.
It seems unlikely that Trump has learned anything from his failures here.  Back in 2016 when asked what would happen if Trump or Clinton were elected, I said no matter who would be elected it would produce gridlock and produce no major change from what was happening between Democrat Obama and the Republican Congress..  Here the gridlock is intra-party, because the Republicans really are not a party united by a common vision for government and society.  Instead, they are profoundly divided by their hatred of the status quo and lack a realistic vision of what it means to be in charge and responsible.  It really sucks being an adult.

Burwell v Mata: Or the Fate of Obamacare and Same-sex Marriage

Let us speculate on the fate of two cases,   King v. Burwell (Affordable Care Act subsidies to health care exchanges run by the federal government) v Mata v Holder (same-sex marriage).

Given Justice Thomas’ dissent in the Alabama same-sex marriage stay some are speculating that Justice Roberts will vote to make it 6-3 in holding that the Constitution protects a right to same-sex marriage.  Assuming that is correct, there may be a several possible reasons for his vote.

Obviously one answer is that he thinks this is the correct constitutional answer.  Second, the Chief Justice is engaged in some smart politics and strategic decision making.  Should he vote to rule that same-sex marriage is protected under the Constitution he is in the position to write or assign the majority opinion.  He of course could assign the opinion to Kennedy (assuming which I do that he is the fifth vote) or he retains the right to pen the opinion himself, thereby giving him more leverage over what the Court opinion is or simply to ensure that the decision is at least 6-3, thereby strengthening its legitimacy.

Another scenario: He is leaning toward striking down the federal subsidies under the ACA.  This is not an impossible scenario and given rumors that he switched his vote in 2012 regarding the constitutionality of the mandate, it is possible that now he write a 5-4 opinion striking down the subsidies on statutory interpretation grounds.  Thus, voting to support same-sex marriage under the Constitution gives him some political capital or deflects away from his decision in Mata invalidating the federal subsidies.

Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision

Five votes.  Five Catholics.  Five men.  One decision.  Potentially millions of American women denied contraceptive coverage.  This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society. 
    Burwell  v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby  contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA).  In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
    First, the majority opinion looked to the text of RFRA.  The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The first question was whether the law’s reference to “person” also included corporations.  The Court said yes.  It did that by making two arguments.  One was to ask how a dictionary defined the word.  Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships.  The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations.  Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
    Second, the Court argued that creating a religious exemption under RFRA for a corporation  had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate.  Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
    So think first about the sexism of the decision.  Five male Justices rule that it is ok for an employer to deny women contraceptive coverage.  Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women.  This is bad enough.  But the sexism is even worse–it is about not getting a clue.  Contraceptives are not just about birth control–they are about women’s health.  Many of the drugs used to prevent pregnancies also address other women’s health issues.  I doubt the Justices understand this (even if they care).  One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
    But the sexism is compounded by the Catholicism and religiosity of their votes.  All five guys in the majority are Catholics.  The Catholic Church opposes not just abortion but birth control.  These five Justices seemed simply to vote the sexist Catholic party line in their decision.  But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law.  The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law.  When the First Amendment was written it declared that “Congress shall make no law establishing a religion.”  But RFRA and the five Justice majority appear to have done that.  We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
    Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United.  The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals.  Here, when the rights of corporate owners clashed with female workers it was the former who won.  More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy.  He was correct.  The powers given to property and corporations under the Roberts Court come at the expense of American democracy.  It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power.  Hobby Lobby is just another example of how some have confused the economic and political marketplaces.

Members of Congress have an ethical and legal duty to fund the government

The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one's best judgment.  But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.

               The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience?  This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown.  In effect, do legislators have a right to disobey and obstruct a law they do not support?  Do they have a right to civil disobedience?  While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.

               The relationship between law, justice, and civil disobedience has a long history in the west.  Sophocles' Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so.  Her decision to defy was premised, in part, upon  concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods.  Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws.  St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws.  In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.

               The United States as a country is a product of civil disobedience.  The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied.  The abolitionists,  including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience.  And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong.  In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law.  But the question is, do legislators have this same right?  May they defy a law they do not support?  Do they have a right to shut down the government?

               Think first about the right of individuals to engage in civil disobedience.  Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society.  It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong.   Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice.  Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it.  But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance.  The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.

               But private citizens are different than legislators and they may have less right to defy laws they dislike.  First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law.  This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God.  Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws.  Does that mean congressional members have no recourse to object to laws they dislike?  Of course not.  They can move to repeal the laws they dislike.  House Republicans have tried that 40 plus times when it comes to Obamacare.  The power to legislate and change laws gives them a tool that mere citizens lack.  While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.

 But there is a difference between trying to repeal a law one does not like and defying it.  This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17.  For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional.  Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws.  One of the most basic principles of American democracy is majority rule.  Majorities get their way so long as they do not violate the constitutional rights of minorities.  Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress.  At some point votes and elections have settled issues and it is time to move on.  This is the case with Obamacare.

Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice.  The decision is based on dislike of the law, Obama, or government in general.  Or it is based on political expediency--appealing to what their constituents want or what will appeal to their electoral base--and not on a sense of higher justice.  Or perhaps it is based on  private conscience or belief that the law is wrong.  All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one's specific duty to support a law that has been legally adopted in a democratic society.  Contrary to what she make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.

In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold.  They are not like ordinary citizens exercising the right of civil disobedience.  Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown.  In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law.  These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.