Law Profs React to Trump Order Authorizing Anti-Obamacare Ads

by Michael Dorf

Remember back when conservatives were going nuts about how President Obama was supposedly acting like a king because he was using prosecutorial discretion to prioritize deportation of violent criminals while supposedly giving legal status to various categories of undocumented immigrants? Most liberals pushed back by arguing that the programs at issue in what became the 4-4 deadlocked case of United States v. Texas did not actually present a problem under the Take Care Clause of Article II because the real issue was simply one of statutory construction. Nevertheless, a few liberals--including yours truly and, most prominently, UC Hastings law professor Zach Price--warned that we ought to be worried about some of the arguments being advanced to sustain executive power in the unlikely but terrifying event of a Trump presidency. (I summarized the debate in a blog post almost exactly a year ago.) Now that the unlikely and terrifying has come to pass, I take no satisfaction in saying "I told you so." But I say it nonetheless.

One could point to many examples of troubling Trumpian executive unilateralism, but the one that has the liberal blogosphere most exercised right now is Executive Order 9066, which Trump signed yesterday. The adjacent picture of President Trump proudly displaying the order tells most of the story, but the details are worth engaging.

On March 24, 2017, President Trump publicly declared that the reason he could not persuade the Republican majority in the House of Representatives to fulfill a promise the GOP has been making for the better part of a decade--i.e., to repeal and replace the Affordable Care Act--was because Democrats did not cooperate. The claim was farcical, even coming from a president whose entire administration poses serious challenges to anyone attempting to write satire. But along with his nonsensical finger pointing at Democrats, Trump said something that turned out to be more important. He said that so far as politics are concerned, it was good for him and the GOP that the American Health Care Act did not pass, because now Obamacare would "explode" on its own, and the Democrats would be blamed.

According to EO 9066, however, Trump is going to be actively assisting in the explosion. Some of the methods were already anticipated--such as Trump's instruction to the IRS not to enforce the tax penalties applicable to persons who are required to but fail to purchase policies on the exchanges. We already knew that the Trump administration was holding back on advertising for young people to sign up for insurance on the ACA exchanges. But now the president has gone much further. Buried within EO 9066 is a provision directing Health and Human Services Secretary Tom Price to "promote American health" by "developing media outreach identifying the costs of ACA coverage." That turns out to be bureaucrat-ease for "make commercials urging people not to sign up for health insurance on the ACA-created exchanges."

According to a story in yesterday's Washington Post, a rough script for the first ad already exists, having been written by Steve Bannon almost immediately after the failure of the AHCA. The following leaked text appears in the WaPo story:
Scene opens on millenial hipsters doing millenial hipster things--texting, laughing, smoking drugs, etc. Camera zooms in on "Julie," an athletic attractive late 20s with purple hair wearing a "Bernie 2016" shirt, as she walks with and talks to "Connor," a light-skinned late 20s black man with a goatee, porkpie hat, skinny jeans, and a tweed jacket over a plaid shirt. 
Connor: 'sup Julie? 
Julie: Hey Connor, can you believe that Obamacare premiums are going up AGAIN? 
Connor: I don't care. I go commando. 
Julie: You don't have health insurance? What about the Obama tax penalty? 
Connor: Psshh. President Trump has my back. Didn't you hear? He cancelled that law. Make America Great Again baby! [Connor and Julie fist bump.]
Julie: Hmm. [Smiles.] But what if you get sick? 
Connor: [Smiles back.] Do I look like the kind of dude who gets sick? Besides, Obamacare's a racket to get young people to pay the medical bills for old folks. 
Julie: I guess you're right. Let's go get a kombucha latte. [Julie and Connor walk towards a trendy coffee shop. She then stops.] Wait. Let me just put this where it belongs. [Julie reaches into her purse, takes out an envelope marked "Obamacare--$$$ due," and throws it in the trash.]
The criticism has come fast and furious. Some critics point out that the ad is misleading at best. Trump did not "cancel" the tax liability, as a president lacks power to cancel a statutory obligation. I agree with this criticism, although if I were to complain about dishonesty from the Trump administration, I don't think I'd start with an ad that hasn't yet been produced or aired.

Accordingly, I'll direct my attention to the argument that has erupted over "government speech." Writing in The Atlantic, University of Baltimore law professor Garrett Epps quotes University of Miami law professor Caroline Corbin--a noted expert on the "government speech" doctrine--as follows: "The whole premise of the government speech doctrine is that sometimes the government accomplishes its legitimate objectives by speaking. But here the objective appears to be to undermine a law that the president is sworn to faithfully execute. That takes government speech to a whole new level."

Not so, says Georgetown law professor Randy Barnett. In an article that he "coincidentally" posted to SSRN just hours after WaPo released the leaked Bannon script, Barnett argues that
the government speech doctrine can be justified by the proposition that speech is a form of action but should be understood to rest ultimately on the First Amendment, which protects "the freedom of speech," not the freedom of any particular speaker. The presumption of liberty thus shelters speech for natural persons, artificial entities such as corporations, unions, and non-profits, and even governments, because all voices can contribute to the marketplace of ideas.
Barnett's article, which was almost instantly rated a somewhat lukewarm "interesting" by his colleague and fellow nouvelle orginalist Lawrence Solum, led to a Twitter accusation by Georgia State law professor (and DoL blogger) Eric Segall that "Randy has abandoned libertarianism to carry water for Trump."

Segall was referring to the fact that in the most recent SCOTUS government speech case--Walker v. Texas Div., Sons of Confederate Veterans--it was clear that the government speech doctrine can and often does cut against the free speech claims of individuals. Barnett responded by tweeting that "Eric Segall is as badly informed about libertarianism as he is about originalism."

Yikes! Maybe Randy and Eric should settle their differences over a kombucha latte.