Do You Know How To Identify A "Constitutional Crisis"?
/The funny thing about constitutional law is that most everybody who has not studied it, and many who have, think that it is a really complicated and sophisticated subject that only extremely smart specialists can understand. Then you read the document, which is remarkably short, and maybe you also read some of the Federalist Papers for a little recreation, and you're left wondering, what about this is so complicated? Maybe it's that it takes some serious obfuscation to convince you that the document means the exact opposite of what it says.
Two things caught my eye on the constitutional front from the New York Times in the last couple of days. Tuesday, it was an op-ed by a guy named Yascha Mounck, identified as a "lecturer at Harvard" (the guy must be really smart!), headline "Trump Is Destroying Our Democracy." Excerpt:
Over just a few days last week, President Trump and his allies stepped up attacks on Robert Mueller, the special counsel investigating the campaign’s connections to Russia. They tried to push Attorney General Jeff Sessions out of office. They thought out loud about whether the president can pardon himself.
The second article appeared yesterday, headline "Court Complicates Trump's Threat to Cut 'Obamacare' Funds." Excerpt:
[President] Trump has been threatening [to eliminate so-called "cost sharing" subsidies for insurance companies under Obamacare] for months . . . . The health law requires insurers to help low-income consumers with their copays and deductibles. Nearly 3 in 5 HealthCare.gov customers qualify for the assistance, which can reduce a deductible of $3,500 to several hundred dollars. The annual cost to the government is about $7 billion.
OK now, guess which one of these two, according to the Times's writer, is "a full-blown constitutional crisis." Of course, it's the first one. And as to the second? The article contains no mention of any constitutional issue at all. What, there's a problem? Of course, if you take sufficient time (about one minute will do it) to check with the Constitution itself, you will quickly realize that there is nothing constitutionally problematical about any of Trump's conduct discussed in Mounck's piece; but there is a gigantic constitutional problem with the Obamacare cost sharing payments. As usual, the Times is giving you carefully calculated misdirection masquerading as news.
All I can say about Mounck's piece is that it seems that hyperventilating about a non-existent "constitutional crisis" about everything President Trump says is the new thing now that "Russia collusion" has gone poof. They tried to push Attorney General Jeff Sessions out of office!!!! Scary! Oh, wait -- doesn't the President have the absolute right to fire the attorney general, and haven't plenty of past Presidents done exactly that? (Article II, Section 1: "The executive power shall be vested in a President of the United States of America.") They thought out loud about whether the president can pardon himself!!!!! Scary! Oh wait -- what about Article II, Section 2 ("[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.")? The drafters seem to have left out the exception for the President pardoning himself. So it's now a "constitutional crisis" to notice that out loud?
I'll grant that the business about "attacks on [special counsel] Robert Mueller" is more complicated, but only slightly so, and only because of one of the worst Supreme Court decisions of all time, Morrison v. Olson of 1988. That case upheld restrictions in a statute passed by Congress (not the same as the current statute) on the President's ability to fire an independent counsel. The vote was 7-1 (Justice Kennedy taking no part), with Justice Scalia as the lone dissenter. Scalia considered that dissent his best opinion while on the Court, and I agree with him (at least among his opinions that I've read). Key quote:
Article II, 1, cl. 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States." As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles. . . .
Does anything about that sound similar to something you've read here? Today, all of the seven justices who voted the other way are gone. Scalia's dissent has justifiably achieved widespread fame. It is very likely that a firing of the "special counsel" by President Trump would be upheld by today's Supreme Court, although Justice Kennedy as always is a wild card and the statist bloc would likely dissent on the deep constitutional principle that they're in favor of anything that hurts Trump. And if the Supremes failed to uphold the President's firing of the special counsel, then that would be the constitutional crisis, not Trump's action.
And what about this business of the Obamacare cost sharing subsidies? Here is the Times spinning like a top to describe the legal issue:
The [Obamacare] law also specifies that the government shall reimburse insurers for the cost-sharing assistance that they provide. Nonetheless, the payments remain under a cloud because of a disagreement over whether they were properly approved in the health law, by providing a congressional "appropriation."
Does the Constitution have anything to do with this? Not that you can find in this article. Indeed, the word "constitution" does not appear. But why the scare quotes around the word "appropriation"? Perhaps they are concerned that a few readers may actually know about Article I, Section 9, Clause 7 of the Constitution: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
Has there been an "appropriation" made for these cost sharing subsidies? Actually not. The Obama administration initially asked Congress to make an appropriation of the needed funds (about $7 billion per year) and Congress didn't do it. And then Obama just went ahead and spent the unappropriated money. By now they're up to about $30 billion or so of the unconstitutional spending.
If you want an excellent detailed write-up of the law on this subject, and how it is not remotely a close question that the government has been unconstitutionally spending tens of billions of dollars of unappropriated money in defiance of the Constitution, I would recommend the decision of District Judge Rosemary Collyer in United States House of Representatives v. Burwell. By the way, that is the opinion where Judge Collyer declared the spending of these billions to be a violation of the Constitution. But the government just goes ahead and keeps spending the money anyway.
And now President Trump is saying he's going to put a stop to it. In Times-world, that's outrageous. After all, "The health law requires insurers to help low-income consumers with their copays and deductibles." Isn't that all we need to know? Constitution? What Constitution?