Donald Trump

Donald Trump's Revolution To Undo Barack Obama's Revolution

Trump's gutting of Obamacare is a breeze of freedom on a sea of regulation.

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Say you want a revolution?
Jesusemen Oni/VOA/Wikimedia Commons

Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (Obamacare) in ways that are revolutionary.

With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor's administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?

Here is the back story.

When Obamacare went through Congress in 2010, all Democrats in Congress supported it and all congressional Republicans were opposed. The crux of their disagreement was the law's command that everyone in the United States obtain and maintain health insurance — a command that has come to be known as "the individual mandate."

Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product — that such decisions should be freely made by individuals and that that freedom was protected from governmental interference by the Constitution. Democrats argued that the commerce clause of the Constitution, which permits Congress to regulate commerce among the states, also permits it to compel commercial activity on the part of individuals who make up a highly regulated component of interstate commerce.

To ensure compliance with the individual mandate, the law provided that the IRS would collect the fair market value of a bare-bones insurance policy from those who did not obtain and maintain one. The government would then take that money and purchase a health insurance policy for that individual who rejected the law's command.

Though Congress did not call it a tax and the government's lawyers uniformly and consistently denied in all courts where it was challenged that it was a tax and President Barack Obama rejected the idea that it was a tax and even the lawyers for the challengers denied it was a tax, a 5-4 majority in the Supreme Court characterized the money collected by the IRS from non-compliant individuals as a tax.

This is profoundly significant for constitutional purposes because though Congress cannot regulate anything it wants, Congress can tax anything it wants, as long as the tax falls equally on those in the class of people who are paying it. This unheard-of characterization of a non-tax as a tax was necessary to salvage Obamacare before the high court because a different 5-4 majority in the same case ruled that the Republican congressional argument was essentially correct — that the commerce clause does not empower Congress to compel commercial activity.

All of this has been debated loud and long since the law was enacted in 2010, validated by the Supreme Court in 2012, and came into Trump's crosshairs in the Republican presidential primaries and again in the general election campaign.

Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone's right to purchase a lawful good or not to purchase one. He also asserted that Obamacare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under Obamacare proved to be patently false, Trump argued.

When Trump promised that as president — on "day one" — he would begin to dismantle Obamacare, some Republicans, many members of the press and most Democrats laughed at him. They are laughing no longer because the first executive order he signed on Jan. 20 directed those in the federal government who enforce Obamacare to do so expecting that it will soon not exist.

He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?

Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government's laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner, and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson's presidency.

Trump's revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit — that they can be and have been wrong. It is exactly as Trump promised.

COPYRIGHT 2017 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

NEXT: Sen. Rand Paul Introduces Replacement for Obamacare

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  1. In other words, it’s good because it’s our Top.Man.

    1. I would take a Top Man reducing government to all the Top Men who love the Nanny-State.

    2. “In other words, it’s good because it’s our Top.Man.”

      I really don’t think Napolitano used that standard to judge what Trump did here. Or were you talking about Republicans?

  2. You, incorrectly, say “U.S. president, who took an oath to enforce the laws faithfully.”

    But Trump did NOT take that oath. He took the oath to defend the US Constitution, NOT the laws that insult the Constitution, even if SCOTUS has decided judicial deference is better than defending the Constitution the judges also swore to defend! So why say this?

    Shame on SCOTUS for judicial deference and for ignoring the Constitution. More power to Trump for defending the people against obviously unconstitutional laws…

    1. Stop lying, Donald. You took an oath to faithfully execute the office, which office is charged with taking care that the laws be faithfully executed. Read your Constitution, it’s right there in Article II.

      1. The oath of office means that the president must, under Article II, faithfully execute laws that comply with the strong constraints on the federal government in Article I, Section 8 and in the Ninth and Tenth Amendments.

        It is the president’s DUTY to faithfully comply with the Constitution first, and then secondarily only with those laws consistent with the former.

    2. Well, this all seems familiar.

    3. Yes, shame on CJ Roberts for not striking down Obamacare. But shame lies also on Randy Barnet for arguing that the Shared responsibility payment was an unnaportioned direct tax. CJR was absolutely correct in slapping down that silly argument.I shows how the libertarian conservative establishment simply does not understand federal taxes, especially the US Individual income tax.

  3. I wish you were on the short list for the Supreme Court!

    Your views on constitutional restraint of government would fit nicely and counterweight Robert’s not being a fan of less government power.

    Keep on-keeping on!

    1. He’s an actual judge??? I thought that was just his name.

      1. Like Mr. Reinhold

        1. Like Mrs. Judy

    2. And The Judge’s confirmation hearings would be glorious.

  4. How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?

    I don’t know what oath is actually used, but the Constitution reads, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article 2 later states, “he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States”, but the oath obviously supercedes that in the case of unconstitutional laws, like the ACA.

    I know some commenters here objected to Obama’s selective enforcement and have remained consistent and objected to Trump’s. But that objection should be dropped when selective enforcement is being used to defend the Constitution. That being said, I don’t think Trump’s concern is Constitutionality, because he (and for that matter Obama too) knows nothing about the Constitution.

    1. If he pretty much just sticks with his premise of reversing whatever Obama did he will be much more consistent with the Constitution.

  5. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner, and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

    Stop and let that sink in. As a libertarian, I haven’t seen anything like this since Reagan sided with the people against the government, and that was over 30 years ago. Judge Napolitano is right to highlight this.

    As bad as the rest of what’s to come may be, I’ll take this.

    1. Yup. If you think about all the court cases, EOs, laws from Congress that would have been completely different if politicians and bureaucrats deferred to less government power rather than more.

      Trump ordering bureaucrats to take it easy on people and follow the law is a huge Libertarian moment.

    2. As excited as I am to hear that, that seems like such a vague command that it can be essentially ignored.

  6. Again, Napolitano would be my first SCOTUS pick. Excellent article.

    There is a lot to worry about with Trump: eminent domain, rampant cronyism with his infrastructure scheme and wall debacle, stop and frisk, tough law and order talk. I am not worried about the protectionism or the torture bluster. Those fears are overblown, I hope.

    That aside what he has done so far and says he intends to do is the biggest victory for liberty in at least a generation and probably longer.

    Still, I fully expect the perfect to be the enemy of the good with a lot of people around here.

    1. Hey, Trump is reversing Obamacare, cutting spending, pushing deregulation, and getting the federal bureaucracy under control, but….

      1. Well, we do have to acknowledge that ‘but’. I find stop and frisk and eminent domain abuse highly offensive. I cant turn a blind eye. The infrastructure project is going to be a massive waste of money down a crony rathole. That and the pipeline projects are going to be eminent domain nightmares for a lot of people.

        1. Stop and frisk and eminent domain are state and local issues. When is the last time you were stopped and frisked by an FBI agent?

        2. I hope the infrastructure nonsense dies in Congress. The place is run by people who didn’t like Trump because he supposedly wasn’t conservative enough for them. We’ll see.

          1. They didn’t like Trump because they were afraid he was actually going to change something. And the infrastructure stuff is not that big of a deal. It is a one off spending of money, not like entitlements that grow exponentially, and unlike the last “stimulus”, at least we will have something to show for it. It is not good but as bad things go it is pretty far down the list.

            1. Because this time the shovels are ready? This is just more government waste with a slightly different constituency than 8 years ago.

            2. If public works were a one time cost, they would not have come up in the last several elections. The reason our infrastructure is “crumbling” is because it costs a lot of time and effort and money to maintain and thus becomes a huge financial burden if it is built through government central planning instead of to satisfy an economically productive need.

              I suppose it’s a sign of the times with everyone complaining about manufacturing jobs fleeing the US, but it seems like every day is full of reminders of how many Americans have never worked on a project that involved building and maintaining something in any industry or problem domain. Just do a quick lookup of the annual economic impact of corrosion and prepare to have your mind blown by the magnitude of a problem you have the luxury of being oblivious to! And we may be looking forward to having a movie producer serve as our new Chairman of the Committee on Central Economic Planning, apologies if that doesn’t fill me with confidence!

  7. It recognizes the primacy and dignity of the individual and the fallibility of the state…It is utterly without precedent since Jefferson’s presidency.

    What is Calvin Coolidge, chopped liver?

  8. Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner, and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

    Trump is an authoritarian monster. He is thin skinned, hates the constitution and is unsuited for the office. It is going to be funny watching reason continue to shit its pants to fit in with their progressive colleagues as Trump guts the regulatory state.

    1. It’s tempting to think that the tweets and pronouncements are intended to distract the media.

      While the media obsesses over crowd sizes and whether illegal aliens voted twice, Trump can dance on things we used to call “the third rail” as if touching those issues were considered political suicide.

      It works so beautifully, it makes me wonder if Bannon is orchestrating this stuff on purpose. His tweets and pronouncements certainly read like sensational Breitbart headlines.

  9. I wish Reason staff could see past all the obnoxious tweets to what’s really going on like Napolitano.

    Trump isn’t a libertarian, but some of his objectives are. I applaud his orders attacking the individual mandate, too, and if Trump signs legislation repealing both the ACA and Dodd-Frank, he will be striking big blows for liberty.

    For goodness’ sake, if Hillary had won, we’d be talking about the public option and single payer.

    1. Once you go open borders you never go back.

      1. Wyatt v would there be to go back to?

  10. “Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product”

    Hmmm…But yet, every single state, through threat from Federal government, requires that it’s citizens maintain liability auto insurance. I fail to see how this is not compelling people to enter the marketplace by purchasing a product.

    1. See the tenth amendment. Individual states are freer to imppse laws than the feds.

    2. One argument is that you aren’t required to drive. The individual mandate is different because it doesn’t require you to buy something because of what you willingly choose to do. The individual mandate requires you to buy something simply because you exist.

      The second argument, and one I’ve long argued around here, is that auto insurance mandates are awful and wrong. Choosing to take your car out on the road is a fundamentally risky behavior and you accept the risk that someone might accidentally damage your car every time you pull out of your driveway.

      Forcing other people to insure your property for you is wrong–if you want to protect your own car from uninsured drivers (something you might need to do anyway despite the auto insurance mandate), then you can buy insurance for that. But you should be responsible for insuring your own property against loss–you shouldn’t use the government to force the rest of the world to insure your car for you.

      Imagine if everyone were forced to buy fire insurance in case they accidentally set each others’ houses on fire–that would be ridiculous. If you want to insure your own house against fire, go insure your own house and leave the rest of us out of it.

      1. Not all states have a mandate for auto insurance. Some allow you to demonstrate that you have the financial wherewithal to self-insure.

        1. Which is ridiculous.

          Why should I be forced to demonstrate the ability to insure other people’s property for them.

          If you want insurance, insure your own property and leave me out of it.

          I’m not responsible for the destruction of your property unless and then after I destroy it.

    3. No, they require that citizens maintain liability insurance if they want to drive a car. That’s no more “compelling” than requiring that doctors carry malpractice insurance, or that they have a degree in medicine, for that matter.

      1. I just realized you explicitly said “liability insurance”. Too fast on the draw.

    4. “But yet, every single state, through threat from Federal government, requires that it’s citizens maintain liability auto insurance.”

      No, some allow ‘self-insurance”, and all are conditioned on the choice of driving.

    5. Apple-orange. If you need auto insurance it’s because you are already in the marketplace. You don’t have to own a car.

    6. Um, back when I lived in Boston, I didn’t own a car and was not required to carry auto insurance.

  11. “This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires.”

    I had heard we entered a post-truth society but I didn’t believe it till I saw a former judge describe a president issuing those orders, swiping that pen, and dialing that phone as Jeffersonian.

  12. “Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone’s right to purchase a lawful good or not to purchase one.”
    Not true. Governments can require the purchase of insurance by auto owners and certain contractors that serve the public.

    1. State governments can because they have general police powers. The federal government cannot.

  13. The judge is correct and should be applauded for this article in general. But before we nominate him for Supreme Court, he shows the usual ignorance of the libertarian conservative establishment regarding taxing powers of Congress.
    Judge Nap says congress can tax anything! Wrong! He needs to reread McCullough v Maryland, and then NFIB vs Sebelius. Congress can only tax property via the Rule of Apportionment. Only done six times in US history. Congress is limited via indirect taxes by the rule of apportionment as Judge Nap mentions, but he omits what Justice Marshal said in Mc Cullough- that Congress is also limited by the rule of sovereignty. Congress can only tax that which it creates, or exists by its permission.
    In Sebelius Roberts gives a concise history of the Supremes taxation jurisprudence. He says Congress can tax occupations it licenses. Obviously the elephant in the room is that everyone believes Congress can tax all occupations. Occupations of common right are outside Congressional taxing powers. http://www.nontaxpayersforronpaul.blogspot.com

  14. Sorry indirect taxes are limited by rule of uniformity not apportionment. My bad!

  15. a 5-4 majority in the Supreme Court characterized the money collected by the IRS from non-compliant individuals as a tax.

    Wasn’t Chief Justice Roberts the only one who characterized it as a tax? I thought the situation was this: four associate Justices said it’s not a tax, but it’s a valid exercise of the Commerce Clause. The other four associate Justices said it’s not a tax, and it’s not a valid exercise of the Commerce Clause. Chief Justice Roberts said it IS a tax, and valid as a tax, but not a valid exercise of the Commerce Clause. Result: 5-4 that the law was valid, but majorities rejecting each theory of why the law was valid. Am I wrong?

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  18. Just trying out reasonable…

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