It’s time to move on – Senate Majority Leader Mitch McConnell, R-Ky after Republicans failed to pass even a stripped down Obamacare repeal bill
The Republicans’ seven-year promise to repeal and replace Obamacare was a lie. Their actions were a mix of unseriousness about policy, political cowardice, deception and ideological incoherence. They were good at agitating and for 8 years they fooled some of the people all of the time. They didn’t want Trump in office, does a poker player want their bluff called?
Trump does have a nuclear option, my preference is that he not detonate, it would cause volatility stacked atop the volatility that already is inherent in ObamaCare. Markets are cautious about pricing risk and the bomb would ripple for years.
But, here is some reverse engineering of how to build the bomb and a map…
Supreme Court Chief Justice John Roberts was the deciding vote on the constitutionality of ObamaCare. Roberts called the ObamaCare penalty a tax.
A mandate consists of two parts: a requirement and a penalty for not meeting the requirement.
No matter how many times you take this back to the Supreme Court, they have the ability to rule on the penalty, not the requirement. You can’t force the court to rule only on the mandate.
Why not? Because it can’t be a mandate without a penalty.
And…
…Congress is the only body that can levy a tax.
Every reasonable construction’ must be resorted to, in order to save a statute from unconstitutionality” [citing an 1895 precedent]
Precedent requires that the Supreme Court twist itself into “every reasonable” contortion in order to save a statute. Presidential executive orders are equivalent to laws, here we can use it law interchangeably with statute
The following are presidential executive orders:
- The creation of the Federal Emergency Management Agency (FEMA)
- The New Deal
- The Emancipation Proclamation that ended slavery
- The Manhattan Project that created the atomic bomb
- The internment of Japanese-Americans
- The suspension of habeus corpus
- Nationalizing the steel industry*
- The confiscation of gold coin, bullion, and certificates nationwide
- Restricting access to presidential papers
- Creating the Warren Commission to investigate the assassination of John F. Kennedy
- Banning assassinatio
- Desegregating the armed forces
- Desegregating public schools
- Creation of the Peace Corps
- Creating equal opportunity in hiring for government jobs
- Requiring that the government do a cost-benefit analysis of each regulation
- Creating the Department of Homeland Security
- Creating the current American flag
- Defining lawful versus unlawful interrogation techniques.
On a scale of those, repealing ObamaCare by EO is candy taken (nicely) from a baby
If Trump moves forward, the battle is already won. ObamaCare is existing legislation.
As long as Trump doesn’t make law in his executive order(s), he can tinker with ObamaCare until it no longer exists.
Trump can use the power of the Executive Branch to “clarify” the law until it’s no longer ObamaCare.
Trump will point out in his executive order(s) that ObamaCare has failed, and he has the duty and authority to act and clarify existing (failed) law.
Since the CBO claims that 15m people will leave the individual market if not for the mandate (which is more than deceptive, but whatever), Trump could declare it void because its “coercive”
The court can always save ObamaCare by calling the penalty a tax. All the plans to ask the court to rule on legality of taxes, subsidies, etc. are likely losing arguments. Trump would win. But a big bomb will have been exploded.
*ADDENDUM: The Supreme Court struck down Harry Truman’s Executive Order 10340, which put all U.S. steel mills under Federal control. The court ruled that Truman had overstepped by attempting to MAKE law rather than clarify existing legislation.