Republican presidential nominee Donald Trump vowed on Tuesday to call a special session of Congress to dismantle the Affordable Care Act within days of next week’s election if he somehow manages to defeat Democrat Hillary Clinton.
“When we win on November 8 and elect a Republican Congress, we will be able to immediately repeal and replace Obamacare,” Trump declared Tuesday afternoon during a speech in King of Prussia, Pennsylvania. “I will ask Congress to convene a special session so we can repeal and replace. And it will be such an honor for me, for you and for everybody in this country because Obamacare has to be replaced . . . It is a catastrophe.”
The immediate problem with his promise, of course, is that even in the unlikely event that Trump wins the election, he won’t be sworn in until January 20 and would be powerless before then to summon Republican and Democratic lawmakers back to work to vote on the future of Obamacare or anything else. There’s a little matter of the Constitution: President Obama will still be in power, and only he could call a special session – which he won’t.
What’s more, House and Senate Republican leaders already are planning to conduct a month-long, lame-duck session after the election to vote on a massive spending bill to keep the government operating, send emergency aid to flood-ravaged states and a raft of other measures.
Trump is notoriously ignorant about the machinations of government, constitutional strictures or even the basic political realities of how things get done on Capitol Hill. While the GOP has been calling for the repeal and replacement of Obamacare for years, they have yet to agree on precisely what would replace the existing law that provides subsidized health care insurance to many of the 10 million Americans who currently acquire coverage through government exchanges.
While House Speaker Paul Ryan (R-WI) and other GOP leaders are working on a scheme to repeal the 2010 Affordable Care Act by using a complicated budget procedure to circumvent a Democratic filibuster, that process would unquestionably take months – not weeks, as Trump apparently would like to see.
Trump has long prided himself as a government outsider who has little patience with political correctness and treats the Constitution with astonishing indifference. While he promises his conservative political base that he would be a strict constructionist in interpreting the Constitution, there is little evidence he has ever read the document.
He has little regard for the First Amendment of the Bill of Rights in attacking reporters as low-lives, calling for tough surveillance of mosques and even insisting that only people with views that he approves of can immigrate to this country. At a private meeting with congressional Republicans earlier this year, Trump famously expressed his admiration for “Article 12 of the Constitution,” seemingly unaware that there are only seven Articles.
Many conservative and libertarian legal scholars have warned that electing Trump would be inviting a constitutional crisis.
Here is just a sampling of the Trumpian view of constitutional liberties:
Shutting down mosques
In November, after a terrorist attack in France, Trump said that eventually, the United States government was going to have to start shutting down mosques. “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”
That’s a pretty blatant violation of the establishment clause of the First Amendment of the Constitution, which guarantees freedom of association, and of the Fifth Amendment, which guarantees of due process.
Banning Muslim Immigrant
Trump’s suggestion that all Muslims be barred from entering the country, which he made in December of last year, violates the establishment clause on due process and the Fourteenth Amendment’s equal protection provisions.
Deporting all Undocumented Immigrants
Trump has promised to round up and deport some twelve million undocumented immigrants within the first two years of his presidency. That would require more than 100,000 deportations per week, every week -- a caseload that couldn’t conceivably be handled without massive due process violations and other assaults on civil liberties, including racial profiling.
Muzzling the press
Trump has repeatedly vowed to challenge the freedom of the press, which is also enshrined in the First Amendment. He says he wants to “open up libel laws” to make it easier to sue publications that run stories he dislikes. There is also the small matter of no federal libel law for President Trump to change. Libel claims are heard at the state level.
Bringing Back Torture
Trump has promised to compel the military and intelligence services to torture terrorism suspects for information. Torture, in addition to being illegal under the due process clause and the Eighth Amendment’s prohibition of cruel and unusual punishment, also violates multiple international agreements to which the US is a party.
Reinstituting Mass Surveillance
Trump has said that he is in favor of allowing the National Security Agency to retain bulk metadata related to Americans’ electronic communications. However, a federal circuit court has already ruled that the NSA’s original program of data collection was illegal because it was not congressionally authorized. Even if it were authorized, it would likely face an insurmountable challenge on the grounds of the Fourth Amendment’s ban on unreasonable searches.
Trump has called for the implementation of a nationwide program allowing police to stop and search individuals for weapons without probable cause. Setting aside the challenges this would face under the ban on unreasonable searches, it wouldn’t be feasible because the president doesn’t establish the rules under which state and local law enforcement authorities operate.
Other Constitutional Ignorance
In a primary debate last February, Trump complained about Texas Sen. Ted Cruz’s criticism of Trump’s sister, a federal judge, for one of her written opinions. “He's been criticizing my sister for signing a certain bill,” Trump said. “You know who else signed that bill? Justice Samuel Alito ... signed that bill.” As any eighth-grade civics student could tell you, U.S. judges don’t sign bills.
He has also promised that Hillary Clinton will go to jail. He even encourages chants of “Lock her up!” at his rallies. In the U.S., jailing someone under federal law happens when prosecutors in the executive branch bring charges that are validated by the judicial branch. Presidents don’t get to decide whether or not a U.S. citizen should go to prison.