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1. I'd like to know why "constitutional conservatives" of the "textualist" sort who populate the pages of National Review
2. and other illiberal journals don't consider the fullness of the founding document they say they revere.
3. In the days since President Trump announced plans to end payments to insurance companies in order to cover the out-of-pocket costs
4. of poor and low-income Americans, a passel of op-eds in right-leaning outlets has emerged saying something to this effect:
5. "Yes, stopping those payments is going to send health insurance markets into a death spiral, endangering lives and raising rates,
6. but what can you do? Obama was breaking the law; Trump stopped it."
7. I don't claim to have authoritative knowledge of the founders' thinking as they constituted a republican government
8. "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,
9. "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,"
10. but I'm pretty sure none did so intending that government to hasten the deaths of Americans in need of care by kneecapping that care.
11. I would hope these constitutional conservatives, if they thought about it, would conclude that what Trump's doing is *actual tyranny*.
12. At the very least, you'd think they would chafe at the president's untenable impatience.
13. Congressional Republicans failed to fulfill their promise to replace Obamacare. They have a slim chance of enacting tax reform,
14. but that slim chance has nearly vanished now that the president has forced them to deal with health care again.
15. As The Hill reported, issues piling up threaten to divide Republicans "at the very moment they need to unify behind the GOP tax plan."
17. You'd think conservatives who would ordinarily cheer House Speaker Paul Ryan's desire to reform the country's largest welfare program
18. – tax deductions – might demand that this president exercise prudence on this issue. But they have been mum regarding the above,
19. or they have rationalized Trump's radically rash decision, because speaking against it would risk appearing
20. to undermine the years in which constitutional conservatives tried to undermine the legitimacy of Obamacare.
21. The truly conservative strategy would be pressing Congress to fix the law – by spelling out that money for "cost-sharing reimbursements"
22. is being appropriated. But instead, these celebrated constitutional conservatives are busy protecting
23. their brand of constitutional conservatism rather than serving the meaning of the document they say they love.
24. The point of government was, to the founders, to protect and defend against the consequences of living in a "state of nature."
25. There was some disagreement about what "state of nature" meant – for Hobbesian founders, it meant constant warfare; for the Lockeans,
26. it meant something like the absence of civilization – but all understood it to include the tendency of the strong to prey on the weak.
27. The Anti-Federalist Papers very clearly said that in a state of nature *every individual was insecure*. Therefore, Brutus wrote,
28. "common interest directed that government should be established, in which the force of the whole community should be collected,
29. "and under such directions as to protect and defend *everyone who composed it"*
30. Remember, these were the Anti-Federalists. They were the conservative faction among the founders who opposed Big Government.
31. Yet they understood *a nation is a social contract*.
32. They would have surely understood the tyrannical result of Trump's monumentally stupid decision.
33. Not only will stopping payments destabilize a fragile health care system; not only will it push out the sickest and most vulnerable
34. – it will put upward pressure on the price of insurance premiums for everyone. Sara R. Collins of the Commonwealth Fund said Friday
35. the decision could "be a knockout, triggering premium spikes and ultimately a mass exit of insurers from the marketplaces by 2019."
37. The self-described constitutional conservatives do have a complaint worth considering. Congress did fail to include language
38. in the Affordable Care Act explicitly saying that cost-sharing reduction money would come from Congress.
39. The Obama administration used a "dubious legal theory," according to Nicholas Bagley, a law professor at the University of Michigan,
40. to get around the mistake. Put together, a viable case can be made that payments were unconstitutional. latimes.com/opinion/op-ed/…
41. But that does not mean the president should stop them, because stopping them deepens the injury.
42. Fortunately, a bipartisan effort is underway in the Senate to restore the money, among other things.
43. The irony is that this bipartisan effort is a truly conservative remedy, something self-described constitutional conservative
44. should have been demanding but were too busy defending then-Rep. Tim Price's radically ill-advised lawsuit to stop CSRs.
45. This is what I mean when I say self-described constitutional conservatives are not considering the fullness of the Constitution.
46. They focus on one aspect–Congress has the power of the purse–while overlooking another–the goal of protecting agnst a state of nature.
47. It's important to make this point.
48. While others have argued against Trump's disastrous decision – Bagley said "Trump has declared open war on" Obamacare –
49. few have argued from a constitutional point of view.
50. That few liberals have made that argument wrongly gives the impression that conservatives alone revere our founding document.
51. Many thanks for reading. Please share. usnews.com/opinion/thomas…
