The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A recent article by David Hunter, a writer for the prominent conservative website Newsmax, egregiously misrepresents a post I wrote about President Trump and illegal Obamacare subsidies. He does so in large part by ignoring the date when the post was published.
Hunter depicts me as attacking Trump's recent decision to end illegal Obamacare subsidies for health insurers:
Naturally, the anti-Trump mainstream media (MSM) opposes his rightful action. For example, Washington Post contributor Ilya Somin writes, "Now, President Trump is making the situation worse by trying to use these illegal payments as leverage to force the legislature to do his bidding." For the record, didn't the Democratically-controlled Congress do Obama's bidding when they passed the ironically named Affordable Care Act (ACA) in 2010?….
What liberals don't scramble, it seems, they tend to mix up. For starters, only Obama overstepped here, not Trump. Yet, Mr. Somin continues:
"What is ultimately at stake here is not only the future of the health care law, but of the constitutional separation of powers and the limits of executive branch authority. Trump's ham-fisted attempt at dealmaking is eroding those limits…."
Had Hunter actually read my post (which he does not link to), he might have noticed that it was published on August 2, over two months before Trump announced he would end the Cost Sharing Reduction subsidies (October 13). I was not attacking the decision to end the subsidies (which had not yet happened), but rather Trump's earlier effort to use them as leverage to try to extract concessions from Congress. Here is what I said:
Instead of simply putting an end to these illegal appropriations, Trump is trying to use them as leverage against Congress, to get it to resuscitate the stalled GOP effort to "repeal and replace" Obamacare…
[Peter] Suderman is absolutely right to point to the potentially dangerous precedent here. If it is illegal for the executive to spend money on X, it is also illegal for him to offer to continue to spend it on X so long as Congress does what he wants on some other issue. If, on the other hand, the payments are mandated by Congress, after all (as the Obama administration dubiously claimed), then Trump has no right to withhold them….
This issue is one of several where Obama's high-handed behavior set a dangerous precedent that Trump can now exploit. In some ways, using illegal spending as leverage is even worse than just doing it without trying to extract concessions for it. The latter creates a dangerous new power for the executive that can easily be abused in many ways. There are many situations where a president can try to exploit legal ambiguities to dole out unappropriated funds to influential constituencies. He can then follow Trump's example of threatening to cut the payments unless Congress does his bidding on some other matter.
As the above (and the rest of my post) makes clear, I have no objection to simply ending illegal Obamacare subsidies; indeed, that was the right thing to do. What I objected to was Trump's (ultimately unsuccessful) effort to hold out the prospect of their potential continuation as leverage to force Congress to make concessions on other issues. Had his plan succeeded, it would have set a dangerous precedent for the reasons I described.
While Trump ultimately did the right thing by ending the subsidies, the credit he deserves for it is greatly diminished by the fact that he only did so after he was unable to use them for political leverage. If Trump was genuinely motivated by principled adherence to constitutional constraints, he would not have waited ten months to end the subsidies and would not have tried to used them as a political tool.
Misrepresenting my position on the CSR subsidies is not the only mistake in Hunter's article. For example, he also erroneously describes me as a "liberal" and a representative of the "mainstream media." In reality, I am a law professor and a blogger at the editorially independent Volokh Conspiracy blog (hosted at the Washington Post website, but not editorially controlled by the Post). I have also written extensively for conservative and libertarian media such as National Review and Reason. Hunter could have found out all of this with only slightly greater difficulty than it would have taken to read the date of my August 2 post and figure out what it is referring to. Much of this information is available simply by clicking my name on the post he quoted (or any other post I have written), which brings up my bio. The rest is readily available at my website, and elsewhere.
Hunter's errors contain some useful lessons for other writers. First, if you are going to quote something, it pays to check when it was written, and consider what that implies for its meaning. Second, if you are going to set yourself up as a critic of "mainstream media," you may want to at least adhere to minimal standards of accuracy yourself.