Trump’s undermining of Obamacare violates the Constitution, new lawsuit charges

Image: People Sign Up For Health Care Coverage Under The Affordable Care Act During First Day Of Open Enrollment

ASHINGTON — After congressional Republicans repeatedly failed last year to repeal the Affordable Care Act, President Donald Trump promised to “let Obamacare implode” on its own.

A new lawsuit being filed Thursday argues that Trump’s efforts to make good on that promise violate the U.S. Constitution.

Trump has “waged a relentless effort to use executive action alone to undermine and, ultimately, eliminate the law,” the complaint charges, according to a draft obtained by NBC News. The lawsuit is being filed in Maryland federal court by the cities of Baltimore, Chicago, Cincinnati and Columbus, Ohio.

Since Trump’s first executive order directing federal agencies to claw back as much of the Affordable Care Act as possible, his directives have increased health coverage costs and depressed enrollment, the complainants say.

Specifically, the suit argues that Trump is violating Article II of the Constitution, requiring the president to “take care that the laws be faithfully executed.”

“There’s a clear case of premeditated destruction of the Affordable Care Act,” said Zach Klein, Columbus city attorney.

This includes making it easier for individuals and trade groups to purchase coverage outside the law’s insurance markets; threatening to eliminate cost-sharing reduction payments; cutting funding for “navigators,” or those who help individuals enroll in the program; and using federal funds Congress dedicated to implementing the law toward making videos criticizing it.

On Wednesday, Health and Human Services Secretary Alex Azar announced a plan for cheaper, short-term insurance plans, the latest example of actions that critics say will drive up costs on Obamacare exchanges.

During a call-in appearance on Rush Limbaugh’s radio show Wednesday, Trump took credit for all but ending the Affordable Care Act.

“I have just about ended Obamacare. We have great health care,” he said. “We have a lot of great things happening right now. New programs are coming out.”

The suit also relies on a list of Trump’s tweets indicating his intent to unravel the law, according to a lawyer involved in the case.

Constitutional scholars have long debated the extent to which the chief executive must “faithfully” execute U.S. laws under Article II — from Franklin Roosevelt’s objections to legislative veto provisions and Harry Truman’s seizure of steel mills.

Citing the same “take care” clause, Republicans took issue with President Barack Obama’s executive orders on immigration as well as his delayed implementation of the health law.

This case stands apart from all others, says Abbe Gluck, a Yale University law professor and expert on Article II, because it’s not about the extent to which Trump is “faithfully” implementing a law. Rather Trump has been frank that he is sabotaging the law, she said.

“That’s what makes this case novel, first of its kind and really important,” Gluck said. “No scholar or court has ever said the president can use his discretion to implement a statute to purposely destroy it.”

“If there’s ever going to be a violation of the ‘take care’ clause, this is it,” she said.

If successful, the suit would strike down aspects of a Trump rule designed to undercut insurance markets; render a judgment he’s violating his constitutional obligation to enforce the statute; and issue an injunction that he implement the law faithfully.


The suit also cites Trump scaling back oversight of insurance issuers, cutting open enrollment in half, urging a federal court to throw out Obamacare’s protections for pre-existing conditions and undermining the individual mandate.

All of these actions, they say, undercut confidence in the program and enrollment, the keys to its success. The whole concept of insurance, whether it’s for cars, homes or people, is to minimize risk by creating a diverse pool — in this case of healthy and unhealthy, young and old participants.

John Yoo, a law professor at the University of California, Berkeley, and former Bush Justice Department official, said a president can’t refuse to enforce a law just because he disagrees with it.

Still, Obamacare was written in a way that gives great leeway to the executive, said Yoo.

“Is there something specific in the statute that he is refusing?” he said, adding that funding reductions don’t qualify. “That’s the constitutional standard,” said Yoo.

In 2017, there was a 37 percent average increase in premiums nationwide, and 3 million more people lacked health insurance than did in 2016. In Columbus, city-subsidized health centers saw almost 3,000 more uninsured patients in 2017. As the uninsured rate increases, Columbus must also pay more for ambulance transports, draining millions of dollars from localities.

“The accumulation of these (acts) has cost Americans thousands of dollars more, and it was done in a way that can be clearly traced” to Trump’s orders, said Andy Slavitt, former acting administrator of the Centers for Medicare and Medicaid under Obama.

The budget strain is also hampering efforts to address the opioid crisis. Ohio has the second-highest drug overdose death rate, according to the Centers for Disease Control and Prevention, with the city of Columbus averaging nine or 10 Naloxone administrations a day to prevent deaths.

“The time for criticism is over,” Klein said. “We have no ability to recoup that money. We just have to eat it due to the Trump administration’s efforts to sabotage the law.”


The plaintiffs deny politics play a role in the timing of the suit, which they say they have been building for the past year.

But it will likely serve as a reminder to voters of Trump’s hand in rising premiums just as they are set to skyrocket. Trump’s 2016 campaign platform was built in part on greater economic security for working-class Americans.

Insurance companies are hiking rates in the individual market, citing decisions being made in Washington. And premiums are set to surge in 2019, with a majority of states proposing increases over and above the previous year.

After several elections in which Republicans used Obamacare to attack Democrats, the party says it’s regained the advantage on the health care issue. In the past few years, the Republican-led Congress has voted dozens of times to try and repeal the law, failing each time. “People got to see they (the GOP) have no better alternative,” said Slavitt.

“Most Democrats are saying ‘look we never said the ACA is perfect, but the other person is trying to take away your coverage,” said Slavitt.

Trump’s former Health and Human Services Secretary Tom Price has also faulted Congress’s repeal of the individual mandate for coming premium increases. Further, Trump’s Justice Department is taking aim at Obamacare’s most popular provisions: a ban on insurance companies’ discriminating against individuals with pre-existing conditions.


The suit seeks to force Trump to adopt policies intended to expand rather than shrink enrollment; reduce rather than increase premiums; and promote instead of attack the ACA.

Among the specific rules plaintiffs seek to reverse are allowing exchanges to strip individuals of tax credits without notification and reducing oversight of insurance agents and brokers, as well as oversight of the law in general.

“What’s insidious here is the administration is doing it knowing that confidence in the act is key to its success,” said Adam Grogg, senior counsel at Democracy Forward and the lead litigator on the case. The fewer Americans who enroll in the program, the more volatile the market, he said.

“The overall picture here is one of sabotage that drives up the rates of uninsured and underinsured and leaves cites and counties holding the bag,” Grogg said.

Four cities are charging that the president is failing to execute the law by actively undercutting the Affordable Care Act.


1K docs, nurses urge Cleveland Clinic to cancel fundraiser at Trump resort

Photo: Inside the Mar-a-Lago, courtesy of The Mar-a-Lago Club website.

More than 1,100 doctors, nurses and medical students are urging the Cleveland Clinic to cancel an annual fundraiser planned at a resort owned by President Donald Trump in the wake of his executive order on immigration.

Over the last three days, 1,141 medical professionals have signed an open letter to Cleveland Clinic President and CEO Toby Cosgrove asking him to cut the perceived ties to Trump in light of the executive order that led to a first-year internal medicine resident at the organization being detained and forced to return to Saudi Arabia because her visa was issued in Sudan, one of the countries on Trump’s list

Suha Abushamma, M.D., has sued the Trump administration, CNBC reports, and a federal judge has ordered the White House to explain why she shouldn’t be allowed to return to the United States.

The ban also had a direct impact on nine patients scheduled to receive care at the Cleveland Clinic over the next 90 days.

Many of the medical professionals who signed the letter are students at Case Western Reserve University, which runs the Cleveland Clinic Lerner College of Medicine.

The letter asks Cosgrove to:

  • Reschedule the lavish fundraiser planned at Trump’s Mar-a-Lago resort in Palm Beach, Florida
  • Release a public statement that condemns the immigration ban
  • Pledge to use his power to protect Cleveland Clinic employees from deportation and allow patients to continue to receive care
  • Emphasize that Cleveland Clinic values diversity and relies on immigrants to provide medical care

2017’s States Most Affected by ACA Repeal

Top-Image-Most & Least Affected States by ACA Repeal

As promised, President Donald Trump on Jan. 20 issued an executive order to undo the Affordable Care Act, or ACA, as his first order of business. Republican senators wasted no time advancing the president’s agenda, either, using a powerful process known as budget reconciliation on Jan. 12 to begin rolling back large sections of the health law. Passage of the resolution followed in the U.S. House of Representatives two days later.

But much of the public as well as members of Congress, including several Republicans, have expressed concern about both the lack of a replacement for the current program and a clear timeline for its implementation — in addition to the cost of repealing the ACA.

Since former president Barack Obama’s signature health-care legislation — more popularly known as “Obamacare” — was passed in 2010, more than 20 million individuals have gained insurance coverage, resulting in the lowest uninsured rate in history by early 2016. Reversal of the law is expected to raise the uninsured rate by an estimated 18 million in the first plan year following repeal, then 32 million by 2026, according to official estimates.

What is clear from the prospect of the ACA’s dissolution is that certain states stand to suffer more than others. In order to assess repeal’s impact on Americans based on where they live, WalletHub’s analysts compared the 50 states and the District of Columbia across seven key indicators of both economic and coverage losses. Our data set ranges from “growth in uninsured population by 2019 post-ACA repeal” to “potential economic impact due to repeal of premium tax credits and Medicaid expansion (2019 to 2023).” Read on for our findings, expert insight and a full description of our methodology.

Women’s March: Protesters fight for healthcare access, reproductive health

Fears that the new White House administration will limit Americans’ access to healthcare inspired many physicians and healthcare advocates to join thousands of protesters and take to the streets Saturday as part of the Women’s March on Washington.

The protest was organized in response to the election of President Donald Trump. But concerns over the future of healthcare in the United States drove many to join the hundreds of thousands of women and men in rallies all over the country and the world.

“Right now, women’s health is in greater danger than it has been at any time in the last 3 or 4 decades,” Kyle Ragins, M.D., a board member of Doctors for America and an emergency resident at the University of California, Los Angeles, told Medscape Medical News.

Healthcare providers not only fear the impact of a repeal of the Affordable Care Act leaving millions without healthcare coverage, but they also worry that lawmakers aim to limit access and coverage for contraception, abortion and other women’s health services, and change the vaccination criteria for U.S. children.

Many protesters carried signs and banners with messages that support reproductive rights and “Medicare for All,” noted MedPage Today.

“We want women to have access to anything they need to make the right choices for their bodies,” Katie MacMillan, a fourth-year medical student at Quillen College of Medicine in Johnson City, Tennessee, told the publication.

The most immediate threat to healthcare access is the repeal of the Affordable Care Act. Shortly after Donald Trump was sworn in as president, he issued an executive order to push for a quick repeal of President Barack Obama’s signature healthcare legislation.

Although many of the physicians interviewed by MedPage Today noted that the ACA was flawed, they also praised the fact that 20 million previously uninsured people received healthcare coverage under the health reform law. It was one reason why Ragins joined the protest. He told Medscape that he wanted Congress and the Trump administration to know that doctors see the benefits of the ACA every day.

But protesters vowed to fight for their right to healthcare. During a postmarch event, Planned Parenthood urged participants to call their senators urging them to protect their access to healthcare, The New York Times reported. Repeal of the ACA and defunding Planned Parenthood is going to “create havoc,” Cecile Richards told David Axelrod on “The Axe Files,” a podcast from the University of Chicago Institute of Politics and CNN.

Trump’s executive order on Obamacare

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Some misconceptions are floating around about what the executive order does and doesn’t do. Let me try to clarify.

As I explained in a post last week, “[a]uthority to implement the ACA … is vested in the Secretaries of HHS, Treasury, and Labor—not the President. In the context of the ACA, an executive order won’t be anything more than a document containing a president’s instructions to his subordinates.”

That’s all this E.O. is. It’s a set of marching orders. It has no legal force. It changes nothing on its own.

And these marching orders are pretty vague. After pruning away the bureaucratese, the executive order tells federal agencies, especially HHS, to do everything they can:

  • To eliminate any “fiscal burden on any State” or any “cost, fee, tax, penalty, or regulatory burden” on individuals and providers.
  • To give the states more flexibility.
  • To encourage the interstate sale of health insurance.

It remains to be seen how and when these orders will be carried out. But we can make some educated guesses (most of which we could’ve made even in the absence of the executive order).

What Could President Trump Do Through Executive Order to Dismantle the ACA?

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The Republican House and Senate have begun the process of repealing the Affordable Care Act (ACA) through the budget reconciliation process. Enacting a budget reconciliation bill is likely to take weeks, however, and at this point it seems likely that such a bill will delay repeal of some of the most important provisions of the ACA for much longer.

In a meeting with Republican lawmakers on January 4, 2017, Vice-President-elect Mike Pence stated that the Trump administration may move much more quickly against the ACA through executive action. He told reporters that the Trump administration would begin on the first day of the administration an orderly transition process to unwind the ACA: “We’re working now on a series of executive orders that will enable that orderly transition to take place even as Congress appropriately debates alternatives to and replacements for Obamacare.”

The President and the executive departments and agencies clearly do have a great deal of power. They can exercise their authority through issuing executive orders, rules, and guidance. The executive branch of government operates programs, decides whether and how to defend or settle litigation, and exercises discretion in enforcing the law. But within our constitutional system the president and executive departments and agencies must comply with the laws and operate according to the processes laid down by law.

What can the executive do to “unwind” a law without congressional action and within the law?