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As with any law of its complexity and ambition, the Affordable Care Act (ACA) vests in the sitting president broad implementation discretion. The law is not a blank check: in many ways both large and small, the ACA shapes and constrains the exercise of executive power. But Congress has neither the institutional resources nor the attention span to micromanage the rollout of a massive health program. It has no choice but to delegate.

Naturally, both President Obama and President Trump have drawn on their authority to tailor the ACA to their policy preferences. Neither president, however, has been able to turn to Congress for more sweeping changes to the law. Stymied in Congress and buffeted by the partisan combat over Obamacare, they have come under enormous pressure to ignore legal constraints that stand in the way of their political objectives. The story of the ACA's implementation is thus a story of two presidents who have tested-and at times exceeded-the limits of their legal powers.

Yet Obama and Trump have committed very different legal sins. President Obama's lawbreaking reflected his efforts to cope with the ambiguities, omissions, and outright mistakes that are common in any massive law and were especially common in the ACA. To implement the bill in the face of congressional resistance, the Obama administration cut corners. President Trump, however, exploited his position as the head of the executive branch to mount an unconstitutional campaign to sabotage the very law he is charged with faithfully executing.

It would' be comforting to treat these legal violations as aberrant responses to particular features of the ACA or to the intensity of debate over health reform. But they cannot be so easily dismissed. The ACA is the most assertive effort in 50 years to make good on the claim that health care is a right, not a privilege. That is another way of saying that the have-nots have a moral claim to the resources and privileges of the haves. The campaign against the law is the reactionary countermobilization of those who believe that the principles animating the ACA pose an incipient threat to the established order. No wonder that health reform provoked the most rancorous battle over a piece of domestic legislation since the adoption of the Civil Rights Act in 1964.

The fight over the ACA may therefore offer a disquieting preview of what may come if Congress moves to address the nation's other yawning inequalities. Like the ACA, future laws will delegate wide authority to the president. They too will contain unanticipated flaws. And they will also be subject to implementation by hostile presidents. Legal constraints on the executive branch buckled in the white-hot heat of the battle over the ACA. They could melt away altogether in the next war.


From The Trillion Dollar Revolution by Nicholas Bagley, Edited by Abbe R. Gluck and Ezekiel J. Emanuel, copyright © 2020. Reprinted by permission of PublicAffairs, an imprint of Hachette Book Group, Inc.