Four cities on Thursday plan to file a lawsuit alleging President Trump and his administration are violating the Constitution by not ensuring the Affordable Care Act (ACA) is "faithfully executed," according to draft obtained by NBC News.
According to NBC News, the cities of Baltimore, Chicago, Cincinnati, and Columbus are filing the lawsuit in a Maryland federal court. The suit centers on Trump's actions aimed at "let[ting the ACA] implode" on its own, NBC News reports.
The cities in the lawsuit allege Trump has "waged a relentless effort to use executive action alone to undermine and, ultimately, eliminate" the ACA. The lawsuit cites steps that the cities say Trump and his administration have taken to "undermine and … eliminate" the ACA, including creating an avenue for certain health plans to bypass ACA requirements, halting the ACA's cost-sharing reduction payments to insurers, and shortening the ACA's open enrollment period.
The lawsuit contends that Trump's and his administration's actions have had a negative effect on the ACA exchange market and has placed additional strain on the cities. For instance, NBC News reports that exchange plan premiums spiked by 37% on average in 2017, and three million more people were uninsured in 2017 than in 2016. According to NBC News, health centers subsidized by Columbus saw nearly 3,000 more uninsured patients last year, and the city pays more for ambulance transports as its uninsured rate increases.
The lawsuit claims Trump's and his administration's actions violate Article II of the Constitution, which requires that the president "take care that the laws be faithfully executed." According to NBC News, a lawyer involved in the lawsuit said the cities will use Trump's tweets to demonstrate his intent to "unravel" the ACA.
The lawsuit is asking the court to rule that Trump is violating his constitutional obligation to execute the ACA and issue an injunction requiring Trump to implement the law faithfully. The lawsuit also asks the court to strike down specific rules released by the administration that the cities claim undermine the ACA.
Columbus City Attorney Zach Klein said, "There's a clear case of premeditated destruction of the [ACA]" by Trump.
Adam Grogg, senior counsel at Democracy Forward and the lead litigator on the lawsuit, said, "What's insidious here" is that Trump's and his administration's actions are undermining confidence in the ACA, "knowing that confidence … is key to [the law's] success." He explained that the insurance market will become more volatile if fewer U.S. residents enroll in exchange coverage because they are not confident in the market. "The overall picture here is one of sabotage that drives up the rates of uninsured … and leaves cities and counties holding the bag."
According to NBC News, Constitutional scholars for years have questioned the extent to which to a U.S. president is required to "faithfully" execute laws under Article II of the Constitution. Republicans cited Article II when they raised concerns over the Obama administration's delayed implementation of the ACA.
However, legal experts have said the new lawsuit is different from other cases, because it is not about the extent to which Trump is "faithfully execut[ing]" the law, but rather Trump's claims that he is allowing the law to "implode."
Abbe Gluck, a Yale University law professor and expert on Article II, said, "That's what makes this case novel, first of its kind and really important. No scholar or court has ever said the president can use his discretion to implement a statute to purposely destroy it." Gluck said, "If there's ever going to be a violation of the 'take care' clause, this is it."
John Yoo, a law professor at the University of California-Berkeley and who worked at the Department of Justice under former President George W. Bush, said a president is not allowed to refuse to enforce a law because he does not agree it. However, Yoo said the way the ACA is written, Trump does have some flexibility. "Is there something specific in the statute that [Trump] is refusing?," he asked, adding that "the constitutional standard" is that reducing funding for a law's provisions does not necessarily qualify as not executing the law (Przybyla, NBC News, 8/2; Diamond, "Pulse," Politico, 8/2).
Cheat sheet: What you need to know about the ACA
The Patient Protection and Affordable Care Act, otherwise known as the ACA, is the comprehensive health care reform bill passed by Congress in March, 2010. The law reshapes the way health care is delivered and financed by transitioning providers from a volume-based fee-for-service system toward value-based care.
Download the ACA cheat sheet to get a quick overview of this significant U.S. health care legislation.