The question now is whether the author of “The Art of the Deal” — and congressional Republicans and Democrats — can maneuver and compromise on these issues in ways that produce sensible public policy.
The first action in question was Trump’s Sept. 5 announcement that he would withdraw Barack Obama’s June 2012 DACA executive order, which effectively legalized immigrants brought to the U.S. illegally when they were children.
Obama acted despite his initial explanation that the president doesn’t have authority to make laws but only faithfully execute them. So, the executive order was dressed up with a fig leaf argument that he was only exercising the kind of discretion prosecutors employ when they choose to bring one case and not another.
A basically identical argument was rejected by federal trial and appeal courts considering the 2014 DAPA executive order extending legalization to illegal immigrant parents, decisions left in place by an equally divided Supreme Court last year. So, both DAPA and DACA legally looked like dead ducks anyway.
The second of Trump’s actions was his Oct. 12 statement that he would suspend cost-sharing reduction payments to health insurance companies. The Obama administration had been making CSR payments since 2014, although Obamacare’s Section 1402 which authorizes them does not, unlike the preceding Section 1401, appropriate money for them.
This was blatantly unconstitutional. “No money shall be drawn from the Treasury, but in consequence of Appropriations made by Law,” states Article I, Section 9, Clause 7 of the Constitution. The House of Representatives sued, and in May 2016, federal judge Rosemary Collyer ruled that the billions paid in subsidies are illegal.