Yesterday, the Trump administration announced that it would no longer defend key provisions of the Affordable Care Act against a Texas legal challenge. This decision is wrong, full stop. The Department of Justice should defend American laws against legal challenge so long as there are non-frivolous arguments to mount in their defense. To do otherwise disrupts the constitutional order in part by imposing an extra-constitutional executive check on legislation duly passed through Congress.
So this is another “norm” and “value” transgressed by Trump administration, right? This is more evidence that Trump has gone rogue, right? Well, that’s what you think if you read the Washington Post. Its story about the administration’s action begins like this:
The Trump administration said Thursday night that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality — a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about.
A “dramatic break”? Well, not exactly. In 2011, the Obama administration declined to defend Section 3 of the Defense of Marriage Act — which defined marriage as the union of a man and a woman for purposes of federal law — in spite of the fact that no reasonable analyst would call its defense frivolous.
In fact, you can read the entire Washington Post story and not find a single reference to DOMA. The reader is left believing that the Trump administration did something new and dangerous. Similarly, the New York Times declares, “The Justice Department has a long tradition of defending statutes enacted by Congress, regardless of whether it supports the policies reflected in those laws.” Nor does its story mention DOMA.
This is what conservatives mean when they talk about media bias. How hard is it to note that the Trump administration is not the first administration to fail to defend an act of Congress in court? How hard is it to note that the Obama administration declined to defend an act of Congress in one of the most important Supreme Court cases in decades?
In recent days we’ve seen the political establishment repeatedly express alarm when the Trump administration actually follows in the footsteps of previous administrations. Far from transgressing “norms and values,” it’s continuing recently established, troubling practices.
It’s becoming increasingly clear that America actually needs the federal government to depart from previous norms and restore constitutional values.
Declining to defend Obamacare is of course one example. But if you’re outraged by Trump’s pardoning unworthy felons, you can ask Bill Clinton and Barack Obama about their own pardons and commutations. Clinton put the pardon power up for sale. Obama commuted the sentences of a terrorist and an unrepentant traitor. I object to Trump’s Joe Arpaio pardon, I dissent from my conservative colleagues who believe the Dinesh D’Souza pardon was justified, and the potential Rod Blagojevich commutation is a sad joke. But politicized and imprudent pardons are nothing new.
Similarly, the Internet lit up last night with the news that Department of Justice prosecutors had “secretly seized years’ worth of a New York Times reporter’s phone and email records” as part of its leak investigation of former Senate Intelligence Committee aide James Wolfe. At least in that instance the Times plainly stated that the Trump administration was continuing “the aggressive tactics employed under President Barack Obama.”
All too many people treat Trump as if he’s a malignant growth in an otherwise-healthy political body. Nothing could be further from the truth. While there are certainly values that Trump has transgressed, Americans still don’t understand the full extent of the damage done to our constitutional system by prior presidents and previous Congresses.
Obama’s “pen and phone” presidency itself represented a significant degradation of norms, and Democrats were either oblivious to the consequences or so sure the “coalition of the ascendant” would guarantee future political dominance that they did not care. Frustrated at Republican intransigence — and convinced that the GOP was somehow thwarting not just the will of the people but also the arc of history — Democrats endorsed and defended massive assertions of presidential power.
Obama waged war in Libya without congressional authorization. He defied immigration statutes to implement sweeping reforms via memoranda. His Department of Education functionally rewrote Title IX and created a constitutional crisis on campus. He pursued leakers at a record pace, spying on journalists and prosecuting more people under the Espionage Act for leaking secrets than all previous presidents combined.
Taken together with other preexisting trends — chief among them Congress’s decades-long abdication of power to the presidency — it’s becoming increasingly clear that America actually needs the federal government to depart from previous norms and restore constitutional values.
“Whataboutism” is a much-maligned term, but it has its uses. Ideally it should convince Americans of the longstanding degradation of America’s constitutional government. Instead, it’s now the ace-in-the-hole argument that enables additional legal abuses. No one is willing to be the first party to stop the slide. It’s seen as weakness. It’s seen as yielding a partisan advantage. But it’s time for a humbling national realization: Often, when decrying lost American values, the proper partisan reaction isn’t to point the finger; it’s to look in the mirror.