State attorneys general from West Virginia to Texas to Utah have filed two lawsuits correctly arguing that both ObamaCare and the Deferred Action for Childhood Arrivals (DACA) program are unconstitutional. President TrumpDonald TrumpRobert Gates says 'extreme polarization' is the greatest threat to US democracy Cassidy says he won't vote for Trump if he runs in 2024 Schiff says holding Bannon in criminal contempt 'a way of getting people's attention' MORE should agree and order the Department of Justice to settle both cases in order to restore the Constitution.
You may ask, weren’t there already ObamaCare lawsuits? Yes, and I ought to know. I filed the first one. But when the Supreme Court upheld ObamaCare by a 5-4 vote in June of 2012, it did so by relying on the so-called “tax penalty” applied to anyone who failed to buy government-approved health insurance. Chief Justice Roberts said that the tax penalty allowed ObamaCare to be considered constitutional as an exercise of Congress’ constitutional taxing power.
And that ruling was in the face of President Obama’s infamous declaration on national television to George Stephanopolous that ObamaCare was “absolutely not a tax increase.”
Fast forward to the tax reform bill of December 2017. That bill effectively repealed the so-called tax penalty on the individual mandate (as of January 1, 2019), thus eliminating the exercise of the taxing power under the 2012 ObamaCare ruling. The only constitutional “hook” that saved ObamaCare in 2012 will thus be gone as of January 1, 2019.
Eighteen attorneys general and two governors have sued under the 2012 ObamaCare ruling to have ObamaCare declared unconstitutional in the absence of the tax penalty, and it’s a logical layup!
President Trump has noted many times that ObamaCare was unconstitutional and that it is doing immense damage to healthcare in America. He now has the power to bypass Congress and end ObamaCare by agreeing with the 20 states that have sued and settle their current ObamaCare lawsuit by conceding that ObamaCare is unconstitutional.
If he did it soon, it would even give Congress seven months to make changes to our healthcare system before the new end-date for ObamaCare: January 1, 2019.
In a similar vein, the attorneys general for six states just filed a lawsuit to end DACA (Deferred Action for Childhood Arrivals). This lawsuit is nearly identical to a successful lawsuit these same attorneys general filed that ended DAPA (Deferred Action for Parental Accountability). The AGs won their DAPA case in the 5th Circuit and the Supreme Court deadlocked 4-4 (Justice Scalia’s seat was vacant on the court) in June of 2016, thereby leaving the 5th Circuit ruling enjoining DAPA as the law of the land.
Just as President Obama said ObamaCare was not a tax before he signed it into law, so too regarding DACA President Obama himself noted on numerous occasions that he — as president — did not have the legal authority to create his own immigration law. “I am president, I am not king. I can't do these things just by myself,” the president said in October 2010. Yet in 2012, he did just that, using only executive authority to create DACA without congressional authorization — exactly what he himself had said he did not have the power to do!
Unlike the ObamaCare circumstances, as it relates to DACA, President Trump announced last September an intention to phase out DACA beginning this March. However, shockingly, numerous judges have weighed in to attempt to compel the executive branch to continue DACA. This is an astonishing violation of the separation of powers by judges — ordering the executive branch to continue a program commenced using only claimed executive power, thereby blocking a newly elected president from undoing the purely executive action of his predecessor.
This is a case of a small number of judges trying to impose their policy preferences by judicial fiat, quite contrary to the six state Attorneys General who have brought this lawsuit in an effort to stop the executive branch from making up its own laws.
Particularly given the outrageous behavior of some judges to unilaterally keep DACA going, President Trump should order the DOJ to settle the AGs’ case and end DACA now.
What would happen if the Trump administration attempted to settle either of these cases?
Two things would happen: First, other parties that want to keep ObamaCare and DACA would attempt to intervene in those cases to argue against settling. It is likely the courts would allow some interested party to intervene to at least make that argument.
Second, the court in each case would decide directly whether the Constitution was being violated, and thus whether each settlement was appropriate. At that stage, it will be critically helpful to have the U.S. government (read: Trump administration) standing with the state attorneys general to end ObamaCare and DACA, as the courts give significant deference to the position of the federal government in such a case.
Assuming the settlements were approved, they would undoubtedly be appealed. But the good news for constitutionalists is that earlier cases have paved the way to end both ObamaCare and DACA — both settlements should hold up all the way through the Supreme Court.
Settling both cases would be consistent with President Trump’s own campaign promises, but these are big steps.The big question now is, will President Trump act to end ObamaCare and DACA without Congress?
We will soon know if the song President Trump chose for his inaugural was for real or for fun… in case you’ve forgotten, that song was Frank Sinatra’s “My Way.”
Ken Cuccinelli II is the former attorney general of Virginia.