http://cepr.net/publications/op-eds-columns/the-impeachable-offense-that-democrats-should-stop-ignoring
Jeff Hauser and Eleanor Eagan
Talking Points Memo, November 1, 2019
For the better part of this year, House Democrats have been consumed by a battle over how best to use their newfound power. One side called for impeachment from the start. The other side insisted that Democrats focus on kitchen table issues like health care. But the choice has always been false; the House can and should do both. In addition to the active impeachment inquiry into Trump's efforts to influence the 2020 election, there should be a second, no less serious impeachment inquiry into Trump's efforts to undermine Obamacare.
The Ukraine scandal merits the sort of no-holds-barred response that House Democrats have been so reluctant to deliver since taking power. Yet, acting as if it's Trump's only impeachable offense risks downplaying the severity of his other, serious misconduct. And fixating on a single story that necessarily involves classified information and international intrigue, rather than corruption of domestic policy matters, is not a savvy political choice.
Trump's attacks on the Affordable Care Act are among his most severe and broadly salient offenses, and his actions are arguably impeachable.
House Speaker Nancy Pelosi (D-CA) has been clear that she considers health care disputes to be best considered outside of the context of impeachment. However, if you look at the Constitution, that assessment quickly falls apart.
Specifically, look to Article II, which states that the president must "take care that the laws be faithfully executed." That's a fancy way of saying that the president has to carry out the laws that Congress writes. How to determine what is faithful execution is a matter of ongoing debate, but it is pretty clear that Trump isn't faithfully administrating the ACA.
In fact, Trump was never coy about his intentions to destroy the law. Mere hours after taking office, he signed an executive order directing members of his administration to undermine Obamacare. Since then, they have happily complied with that order's underlying intent while conveniently ignoring the demand that their actions be "consistent with law." And while the courts have repeatedly affirmed that the president has wide discretionary latitude to decide how to enforce the law, they have not recognized a president's right to effectively repeal laws through executive action.
And that's essentially what Trump is doing.
While the ACA's intent was to "expand coverage in the individual health insurance market," Trump and his administration have openly defied that goal and instead sought to limit healthcare coverage through the ACA exchanges. As former senior White House staffer Steve Bannon bragged, Trump ended payments to health insurance companies subsidizing health care for the poorest Obamacare customers in order to "blow" up the Affordable Care Act.
The Trump administration also decided to cut the ACA's marketing budget by 90%, despite robust evidence from a Center for Medicare Services (CMS) study showing "that paid outreach was responsible for 40 percent of all enrollments." In addition to cutting down on outreach, the administration made it harder for people to find accurate, comprehensive information about the law and its guarantees. The Sunlight Foundation's Web Integrity Project found at least 26 instances in which the administration had censored information about the ACA by removing it from official webpages. No amount of obfuscation could possibly make a convincing case that these actions were undertaken with any goal except to undermine enrollment.
That's not all. In June 2017, Health and Human Services used money that Congress had appropriated for Obamacare outreach efforts to produce and publicize 23 video testimonials "from people who said they had been 'burdened by Obamacare,' including families, health care professionals and small business owners."
Then there's the administration's use of state waivers. While Obamacare made room for state-level innovation through waivers, it set clear parameters. The statute clearly states that the secretary of Health and Human Services may only grant a state waiver request if the state plan "'will provide coverage that is at least as comprehensive as' ACA-compliant coverage." The Trump administration has repeatedly violated this basic restriction by granting state waivers that, for example, impose work requirements on adults seeking medicaid coverage.
Given all of this, Congress has more than adequate grounds to justify an impeachment inquiry to flesh out the already vivid public case that Trump has intentionally sought to undermine, rather than execute, the Affordable Care Act.
We are far from the first to make this case. Last year, four cities and the organization Democracy Forward filed a lawsuit in federal court alleging that Trump's actions constituted a violation of his constitutional duty to "take care." This also wouldn't be the first time that Congress moved to impeach a president on the basis of such a violation. Among the articles of impeachment drawn up and approved against President Andrew Johnson was one accusing him of failing to "take care" to execute the Tenure of Office Act.
There is, therefore, little question that the House has everything it needs to open an impeachment inquiry against Trump for his failure to "take care" in executing the ACA.
They cannot, of course, stop there. In order to build the case for Trump's conviction on this count, they must dig deeper and demonstrate that Trump's actions are indeed motivated by the goal of undermining the law of the land, not just the product of an ideological approach to administering the law within the discretion of the president.
Subpoenas to government officials might reveal even clearer evidence of the direct links between Trump's stated intent to destroy the law and the administration's specific actions that undermined it. A robust investigation might also elicit even more damning evidence by reassuring would-be whistleblowers within the government who believe coming forward is worth the risks. The current impeachment inquiry has already made abundantly clear that a serious investigation with real potential consequences attracts public servants willing to tell the truth. Finally, hearings with witnesses affected by Trump's attacks on the ACA could build public awareness about the severity of Trump's actions. Congress needs to make clear that these abuses are not just reprehensible but likely unconstitutional.
Some may worry that an investigation would be too logistically challenging, and that pursuing such an inquiry might risk taking resources from the Ukraine-focused inquiry, thereby jeopardizing both. But this should not be a concern. As the House Intelligence Committee investigates Trump's actions with regards to Ukraine, the House Judiciary or Energy and Commerce Committees could pursue the line of inquiry we propose.
Democratic lawmakers have spent years talking about the threat Trump and Republicans pose to Americans' healthcare coverage, yet they have been surprisingly reticent to use their power to do anything about it. It is not enough that House Democrats' mere presence in the House majority has stopped Congress from repealing the Affordable Care Act. As should be clear by now, Trump is pursuing repeal through other means, and House Democrats have done nothing to stop him. However, they can still show that their campaign promises to protect voters' healthcare were serious by opening an impeachment inquiry into Trump and his associates' unconstitutional efforts to undermine the ACA.
Jeff Hauser is the director of the Revolving Door Project at the Center for Economic and Policy Research (CEPR), which aims to increase scrutiny on executive branch appointments.Eleanor Eagan is a research assistant at the Revolving Door Project.
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