Jurisprudence

Trump’s New Legal Strategy Is to Lose and Then Blame the Courts

A gavel on a laptop looking at healthcare.gov.
Photo illustration by Slate. Photos by AndreyPopov/iStock/Getty Images Plus and healthcare.gov.

Donald Trump is now hoping that his kryptonite—the courts—will save his presidency. The president is not banking on a long-shot legal win, as he did when the Supreme Court upheld his travel ban last summer. No, he has taken a position against Obamacare in court that he apparently expects to lose, so he can blame someone else for his failure to repeal and replace the health care law. This is some next level cognitive jujitsu.

For all his bluster, when it comes to the courts, Trump is the losingest president in the history of presidenting. Last month, the Washington Post published the definitive guide to 63 cases this administration has lost in the federal courts, a pattern that includes a staggering 90 percent loss rate in his various deregulation lawsuits. Just last week, the administration was dealt massive blows in two signature efforts to roll back the Affordable Care Act and Medicaid. The bulk of the losses, according to the Post, are a function of slipshod and sloppy rule changes. But as Dylan Scott pointed out in Vox, courts are also increasingly tagging the administration for violating existing federal law. Which brings us to the Affordable Care Act.

In 2010, the ACA was signed into law. Republicans in the House attempted unsuccessfully to repeal it 70 times thereafter. The Supreme Court twice rebuffed efforts to kill it. When Donald Trump took office in 2017 with majorities in both houses of Congress, he pledged to repeal and replace it with something else. But the big repeal attempt failed when Sen. John McCain voted against it. Nevertheless, in 2017, Congress did away with the ACA’s tax penalty for those who didn’t have health insurance. Then, in February of 2018, Texas and 19 other states filed suit, claiming that the individual mandate was now unconstitutional, since the tax penalty had been zeroed out by Congress. At this point, the Trump administration took the unusual position of refusing to defend significant portions of the law. This was so astonishing that a veteran Department of Justice lawyer quit the department rather than take part in the Trump administration’s refusal to defend the ACA. Then this past December, a federal district court judge in Texas ruled that Congress, in repealing the mandate, had rendered the entire law unconstitutional. Scholars and court watchers across the ideological spectrum deemed that ruling absurd and indefensible. The consensus was almost universally that the Supreme Court would never side with the Texas claims, if the case even were to get that far.

But then, in a shocking new two-sentence legal filing last week, Trump’s Justice Department announced a change in its position. It would now support the Texas lawsuit’s effort to repeal the entire 2010 law, abruptly reversing from its earlier posture that only the preexisting condition and other consumer protections should be struck down.

Reporting last week from the New York Times revealed that the decision to support the legal fight for a wholesale repeal came at the urging of Trump’s acting chief of staff Mick Mulvaney, and over the objections of Attorney General William Barr and White House counsel Pat Cipollone, as well as Health and Human Services Secretary Alex Azar.

The whole thing proved a massive unforced error. Never mind that nobody seemed to want to contemplate the catastrophic national consequences if the Texas lawsuit prevails and 20 million people lose coverage. Republicans quickly flew into a full-blown political panic about the reversal. Sen. Susan Collins, one of the GOP’s most vulnerable 2020 Senate candidates and never one to refuse to express strongly worded concerns about things, sent a strongly worded letter of concern to Barr. Fearing that an Obamacare repeal could decide their fate in the 2020 election, Republicans across the board were dismayed and distressed at the prospect of Trump attacking Obamacare in court. Last week, they balked at Trump’s order to cough up a replacement program, well aware that the failed efforts to do away with preexisting condition protections in 2017 helped lead to devastating losses in the 2018 midterm elections. Further, the Post notes, “House Republicans privately worry [the efforts] will cripple their attempts to reclaim the chamber and could even cost them additional seats in 2020, though few will admit so publicly because they fear Trump’s ire.” That means that Republican lawmakers are now secretly hoping that the federal courts will uphold Obamacare so they don’t have to run for election with a dead health care law at their feet.

This all led on Monday night to Trump tweeting that he is backing off the whole ACA replacement plan until after the 2020 election, at which time he will present us all with a “really great” health care plan built of the stuff that made Trump Steaks and Trump University so very great. Further, at least according to Axios, Trump was telling people behind closed doors that he believed the Texas suit would fail. It seems he wanted to back the failing lawsuit because it would be good “branding” for him to oppose Obamacare as part of his 2020 reelection bid. So, Trump’s plan, it seems, is that either the ACA is struck down by the federal courts, making the total breakdown of America’s health care system the courts’ fault, or that it is upheld by the courts, so he could blame the judiciary for his own failure to fulfill his promise to repeal and replace Obamacare. Either way, Trump, personally, would be off the hook.

It is axiomatic that Donald Trump has a gift for turning his losses into wins simply by blaming the agent of the loss for thwarting the will of “the people.” But in flipping the DOJ’s position in the ACA litigation, he appears to be affirmatively courting losses in a way that transcends even the most cynical Trumpian worldview. It’s entirely possible that the reason this president has the highest loss rate in the courts is because he actually banks on losing. Perhaps, it’s good for him. The question is why?

Surely Trump enjoys that he can—with each and every loss—continue to attack the independent judiciary, one of his favorite in-between-nap activities. It’s also true that if your entire brand is fomenting crisis, the sudden loss of access to health care for millions of Americans might be considered a big win. On the flip side, the ability to deflect blame to the courts for his own political failures on health care could also result in more claims of winning if things go the other way.

It’s not just that Trump’s principal brand is chaos, though. It’s that his principal claim is “I alone can fix it.” He has shown, time and again, a willingness to blame even putative allies if it serves to position him as the sole savior—bread and butter stuff if you’re an authoritarian who hates institutions. When the Framers crafted the three-way system of checks and balances, they assumed that any two branches could promote stability by checking the third if it went off the rails. Donald Trump has managed to invert that tripartite structure, happily spreading the blame for government dysfunction among the other two branches, instead of his own. The rule of three as the most stable structure can be subverted to afford you double the scapegoats. That is his current play on the ACA, betting on the opportunity to use decisions of the courts and the Congress as excuses for his failure to perform on a central campaign promise. This will always be his play so long as allocating blame is more valuable to him than achieving any policy outcomes. Cruelty itself is still emphatically the purpose of this president’s decision-making, but evading responsibility is the prime method.