Patterico's Pontifications

1/21/2017

Trump’s Order On ObamaCare: Is It Executive Overreach?

Filed under: General — Patterico @ 4:00 pm



Yesterday Donald Trump signed an Executive Order on ObamaCare titled MINIMIZING THE ECONOMIC BURDEN OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT PENDING REPEAL. There has been some talk about whether the order guts ObamaCare, and/or amounts to the repeal of the mandate.

Does it? And does Trump’s order amount to executive overreach? The text of the order is here, and these appear to be the most potentially relevant provisions:

Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

Is that executive overreach? I don’t think we can know yet. I think we have to see what Trump’s administration does with it.

The order states that it is intended to operate “[t]o the maximum extent permitted by law,” which Trump supporters will argue (perhaps with justification) shows that Trump does not intend to overstep his authority and infringe upon Congress’s sphere of power. Charles C.W. Cooke argued on Twitter last night that Obama always claimed that what he was doing was within the law.

Is that true? I spent some time last night trying to track down the actual text of Obama’s orders on various topics. They tended to be contained in things like letters from a bureaucrat, or announcements on a particular department’s Web site. I wasn’t able to verify or disprove Cooke’s assertion, but it stands to reason that Obama always claimed that what he was doing was legal, even if it wasn’t. Presidents always do.

Here is what is beyond dispute: Obama did engage in overreach. The Affordable Care Act gives the President wide discretion in certain areas, but in other areas it sets specific deadlines, such as with the employer mandate. When Obama claimed the authority to change that deadline for political reasons, he was engaged in clear overreach. We all said so at the time. And if Trump tries the same thing, he will be too.

But shouldn’t Trump get to do whatever Obama did? Over at Hot Air, my favorite blogger Allahpundit articulates what is likely to be a common reaction from the right:

Remember when King Barack decreed in 2013 that he would delay enforcement of the employer mandate even though the law itself required the mandate to take effect on a specific date? Conservatives like me howled that the president has no constitutional power to delay implementation when a federal statute requires it, but O got away with it. And now turnabout is fair play. If King Barack enjoyed a particular type of authority, King Donald enjoys it too. Good work, liberals.

I rarely disagree with Allahpundit, but I will here. I may be a lonely voice here, but if the President doesn’t have authority to do something, he doesn’t have it whether he is a Democrat or a Republican. He doesn’t have unconstitutional authority even if a previous President claimed that authority. If one President declares war without obtaining a declaration from Congress, that is unconstitutional no matter how many previous presidents did the same. Responding to other conservatives’ “turnabout is fair play” arguments in November 2014, Charles C.W. Cooke wrote:

Sean Trende, who is among the most interesting and level-headed writers within the firmament, today proposed on Twitter that the Republican party’s “smart play on executive immigration is to shrug, then have a field day when they next get the presidency.” When I asked him for clarification, Trende told me that the system runs on “norms” and that, once broken, those norms are difficult to reinstate, and he therefore contended that Republicans should acknowledge the power grab and wait patiently until they can utilize it. “I think it is a horrifying precedent being set here,” Trende conceded, “but the die seems to be cast.” Ace of Spades’s Gabriel Malor, another man I hold in high regard, holds a similar view, often expressing excitement at the possibility that Republicans will eventually be able to take advantage of what he terms, cheerfully, “The Obama Rule.”

I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape. During the last 500 years or so, the primary question that has faced the Anglo-American polities has been whether the executive or the legislature is to be the key proprietor of domestic power. In one form or another, this query informed both the English Civil War and the Glorious Revolution that followed it, and it was at the root of the Revolution in America. Cast your eyes across the Declaration of Independence and you will notice that the majority of the “long train of abuses and usurpations” have to do with the violation of the rights of assemblies by individuals who believe themselves to be the dominant arbiter of the state’s affairs.

Once, Barack Obama sided with the abused and the usurped. Reaffirming his “appropriate role as president” in 2011, Obama pushed back against those who wished him to “bypass Congress” and “change the laws” on his own, reminding his audience that “that’s not how our system works; that’s not how our democracy functions; that’s not how our Constitution is written.” Last year, he insisted vehemently that the United States was a “nation of laws” and that his critics should refuse to “pretend like [he] can do something by violating our laws.” Today, he takes the opposite view, putting his preferences above the “appropriate role” of the president — above the “system,” “democracy,” and the “Constitution” — and indeed promising to “bypass Congress and change the laws” on his own. In the meantime, suffice it to say, we have not added a “gridlock clause” to our charter. If conservatives sit idly by as the executive branch abdicates its responsibility to faithfully execute the laws, they will be complicit in the devastation of our political system.

Will Donald Trump’s executive order be used to engage in the type of overreach Barack Obama routinely employed? I’m not sure yet. But if it is, conservatives need to lay down a marker now: this will not be acceptable.

Even if Barack Obama did it.

[Cross-posted at RedState.]

37 Responses to “Trump’s Order On ObamaCare: Is It Executive Overreach?”

  1. it’s a good first step

    hopefully it puts some pressure on pervy harvardtrash Mitt Romney’s slicked-up boy toy Paul Ryan to get moving on formally repealing the obamacares what harvardtrash food stamp and his harvardtrash bimbo John Roberts did all up in America without a single Republican vote

    happyfeet (28a91b)

  2. I totally agree with you. But I hope that Trump will do more than just behave properly in this regard; I hope he gives speeches and tweets about the reason why he chooses not to overreach.

    I have said before that the GOP needs to articulate a coherent position opposite of the touchy-feely fasicsm of the left. Make these discussions part of the culture. Andrew Breitbart could tell you why that’s important.

    Patricia (5fc097)

  3. NeverTrump said our new president would never ever ever do anything he said he was going to do during the campaign

    but look at him go!

    and now NeverTrump’s all like hey there tiny hands man you hold on for a cotton-pickin minute

    NeverTrump should do like how Madonna says and choose love I think

    happyfeet (28a91b)

  4. #3 happyfeet, i’m not sure that madonna chooses love
    i think she has a track record of choosing sex
    there’s a difference

    Cruz Supporter (102c9a)

  5. @4- Her ‘manhandling’ of that microphone today supports your observation.

    DCSCA (797bc0)

  6. Its a matter of interpretation,

    narciso (d1f714)

  7. I rarely disagree with Allahpundit, but I will here. I may be a lonely voice here, but if the President doesn’t have authority to do something, he doesn’t have it whether he is a Democrat or a Republican. He doesn’t have unconstitutional authority even if a previous President claimed that authority. If one President declares war without obtaining a declaration from Congress, that is unconstitutional no matter how many previous presidents did the same. Responding to other conservatives’ “turnabout is fair play” arguments in November 2014, Charles C.W. Cooke wrote:

    I don’t think its overreach on Trump’s part as it is he does have the authority to limit and eventually stop Obama’s overreach. True enough- nether Trump now or Obama formerly had the authority to change the law a whim. But Trump may use the sections of the law that allows him some latitude. If that means he can ameliorate (there’s a word you don’t see often) at least some of Obamacare pending repeal, I don’t have a problem with that.

    Bill H (971e5f)

  8. NeverTrump should do like how Madonna says and choose love I think

    happyfeet (28a91b) — 1/21/2017 @ 4:30 pm

    And I think Happyfeet should dial “NeverTrump” reference back just a little. At least until he can explain to us just how Goldy Sacky fits into the Trump administration,, but not a Cruz one. .

    Bill H (971e5f)

  9. The MSM seemed more concerned in the past day with gowns and a game of hide and seek over MLK’s Oval bust. But then, they know Americans don’t want to be governed, they wish to be entertained.

    DCSCA (797bc0)

  10. I don’t see the problem here. The order does say it’s limited to the extent available in law. This is a hard order to misinterpret and I am glad Trump is keeping his promise on Obamacare. This action is what is truly necessary to show that the election matters and means change. Now the onus is on Congress to act instead of doing the ‘what’s the replacement’ trick the democrats have been arguing (because it will slow everything down to attempt to reach consensus). Obamacare wasn’t passed with Republican support, and it won’t be undone without Republican action, as a party. Trump need not be a great guy to get the party on board with a great idea.

    Dustin (ba94b2)

  11. The Dems nominated the wrong supposedly-blond has-been. Coulda kept Michigan and some of the cafones

    urbanleftbehind (8dd5fd)

  12. But then, they know Americans don’t want to be governed, they wish to be entertained.

    DCSCA (797bc0) — 1/21/2017 @ 4:57 pm

    And had Sanders made it, I would have been greatly amused. Our economy would have crashed and burned and the Boy Scouts would have made the strongest component of our national defense, but yes, I would have been entertained.

    Bill H (971e5f)

  13. It’s a possible problem, not a problem per se.

    If Trunp delays things he has no statutory authority to delay, that will be a problem.

    But let’s see what happens.

    Patterico (d6b59b)

  14. But let’s see what happens.

    Patterico (d6b59b) — 1/21/2017 @ 5:04 pm

    Aye.

    Bill H (971e5f)

  15. Executive fiat is both easier and seems more powerful, which are temptations that Trump’s critics (such as me) do not believe he can resist in the future. The intention of this order is to begin to undo Obamacare, an act of congress, albeit it’s limited to ‘what the law allows’, which is respecting the separation of powers in my opinion. If Trump doesn’t just sign these orders, but also works for Congress to do the heavy lifting that is their responsibility, that will be a good sign for sure. If he doesn’t, bad sign.

    Dustin (ba94b2)

  16. Fwiw as a nonlegal person,
    If trump limits his executive overeaches to undoing Obama’s,
    I will not object
    If he tries to repeat or make his own because O did, none of that.

    I don’t know if there is a way to legislate clearer limits or not, and whether it makes a difference,
    As I guess in the end you need a Congress willing to enforce the law by impeachment.

    MD in Philly (f9371b)

  17. I’m fine with this. It’s like in the military when a Flag Officer makes a suggestion, it’s an order. But, if push came to shove, it wouldn’t be.

    Given the way Deep State operates, the practical effect is likely to be negligible.

    Ed from SFV (3400a5)

  18. Anything that can be done by EO can be undone by another without raising the question as to whether the undoing was OK, even if you thought the doing was not OK. Because if the first was wrong, the second just formally undoes the wrong without having to drag the issue through court.

    Anything that can be done by broad interpretation by an agency, can be undone by new interpretation. The “wrong” here is that something that should have been spelled out in law wasn’t.

    Folks trying to argue that Trump cannot use Obama’s tools to undo Obama’s harms are idiots. Maybe idiots impressed with themselves, but that doesn’t make them right, it makes then vain idiots. Vain Idiots willing to see the ratchet move quickly left and slowly right as long as they get to preen in the mirror admiring how smart their bowtie and smug smile make them look.

    Smarty (0bab40)

  19. Will Donald Trump’s executive order be used to engage in the type of overreach Barack Obama routinely employed? I’m not sure yet. But if it is, conservatives need to lay down a marker now: this will not be acceptable.

    I disagree with much of your – what I would describe as hyperventilating – about Trump, but I agree with you completely on this point. I am very supportive of Trump and have high hopes for his presidency. But, I want him to adhere to the constitution in all regards and would see no room for latitude in that regard.

    One of the things I like about Trump is his willingness to fight back against the media and the left (birm), unlike far too many on the right who are all to happy to be good sports and continue to take the abuse being dealt out. But, when it comes to the constitution, turnabout is not fair play.

    The problem remaining to be solved it what to do with the GOPe types in Congress who refused to check Obama when he went outside the bounds of the constitution. When Obama violated the constitution, they were the ones with the duty to rein him in and they failed in the worst possible way. Not from putting up the good fight and falling short, but failing to even try to fight.

    Anon Y. Mous (9e4c83)

  20. I received an unsolicited email late this afternoon advising this site had been “placed on the Trump Unacceptance & Resistance Disorder (TURD) list and will be closely monitored…”. Anybody else receive one?

    Colonel Haiku (2601c0)

  21. That CNN reporter who said that the MLK bust had been moved out of the Oval Office is a biased punk.
    He didn’t attempt to confirm it with anyone in the West Wing— he just rushed to report it as fact.
    It turns out that someone was standing in the way of the bust when he was looking in that direction, so that’s why the reporter claims he didn’t see it. That’s great that he ultimately apologized, but what else could he do?

    These MSMers will wait weeks after an attack before they publicly confirm that a jihadist was indeed a Muslim. But they couldn’t wait five minutes for confirmation about the MLK bust because they were too excited for an opportunity to stoke the fires of perceived raaaaacism.

    This is one of the consequences of bias in the newsroom; it affects not only the information and point of view they ultimately present, but it also affects the news-gathering process as well.

    Cruz Supporter (102c9a)

  22. Anyone who criticised obama’s over reach has the moral authority to criticise Trump’s over reach. Likewise anyone who criticised hillary’s ethics at state vis a vis the clinton crime foundation has the moral authority to criticise Trump if he sells government access and secrets. Anyone who did neither, I don’t want to hear from. You are just playing politics. Too many people let both obama and clinton do what they wanted to do, from both sides. To them I say STFU,

    Jim (a9b7c7)

  23. My gosh… watching Barrett-Jackson and Burt Reynolds came on. He can barely stand up and looks so old, it brought a tear to my eye.

    Colonel Haiku (2601c0)

  24. The last time he was on TV was a burn notice episode, about six years ago

    narciso (d1f714)

  25. Lamar Alexander is the chairman of the Senate committee through which Price must move to confirmations as Secretary of HHS. Alexander provided a mid-February target for confirmation and an early March target for repeal of ACA.

    The EO is a minor bit of political theater with minimal impact other than as notice ACA is now resting comfortably on a gurney in the hall, covered with bright red DNR tags to lend a festive air to the occasion.

    Rick Ballard (1c0700)

  26. Obamacare was specifically designed to give the various administrative agencies exceptionally broad abilities to move goalposts and shift requirements as necessary to ensure they could jigger the results in the direction they wanted. What the Dems never anticipated was that those legally-built-in abilities would someday be in the hands of Republicans. ALL Trump did with this directive was to serve notice that those goalposts and requirements are now to be (legally) shifted in the direction that favors his viewpoints and promises.

    That is in no way an “overreach” unless one believes the ACA was an overreach in itself.

    jack burton (18e2fe)

  27. @23/@24 There’s a 2016 doc airing occasionally on CMT about the late Hal Needham titled ‘The Bandit’ and he looks pretty frail in that as well.

    http://www.cmt.com/movies/the-bandit/

    DCSCA (797bc0)

  28. The question is too important to allow emotion or preconceived prejudices to replace reason or binding restriction. I’ll hold off till the law dogs stop barking. I might learn something.

    ropelight (82fc11)

  29. He boxed himself in with the moratorium on federal regulations. This EO is in the short term to be put in practice via non penalization of taxpayers for not having plans. This actually should be the purview of the IRS and not necessarily be subject to EO. The insurance companies, as vilified as they are, are not going to stand for mandated refunds without binding legislation instructing the to do so.

    urbanleftbehind (8dd5fd)

  30. Me too, Ropelight@ 8:04 P.M. Having worked with many lawyers over the years on corporate matters I am aware that even when they are on the same side they frequently don’t agree on all the aspects of interpreting complex law and proposed strategy, etc. I am going to assume that while he was still president- elect Donald and his staff sought and got the opinions of various lawyers– possibly even Ted Cruz about this. I have no opinion on this executive order beyond that, other than that people who voted for Trump on the issue of Obamacare are seeing some action and evidence that he intends to try to keep his promises.

    elissa (194766)

  31. The IRS is part of the Executive Branch.
    Obama is the head of the Executive Branch.
    Saying it’s something for the IRS to handle and not for an EO is like saying winning the game is something for the team and not the coach.

    John Hitchcock (7d184c)

  32. Oh heck. Trump is the head of the Executive Branch.
    That was like writing January 1, 2016 just a few days ago.

    John Hitchcock (7d184c)

  33. @ Smarty, #18:

    Anything that can be done by EO can be undone by another without raising the question as to whether the undoing was OK, even if you thought the doing was not OK. Because if the first was wrong, the second just formally undoes the wrong without having to drag the issue through court.

    Obviously true.

    Folks trying to argue that Trump cannot use Obama’s tools to undo Obama’s harms are idiots. Maybe idiots impressed with themselves, but that doesn’t make them right, it makes then vain idiots.

    Who’s making this claim?

    Demosthenes (5df06b)

  34. I agree with you that Trump does not have the authority to write executive orders that countermand law even though Obama did it and got away with it. He certainly can rescind any or all of Obama’s executive orders that are still in effect.

    Neil A (b0d70a)

  35. Trump will not get away with even a 10th of what Obama did. First. Trump is not the second Black President. Second. The Republicans are not as cohesive as the Democrats.

    Davod (f3a711)

  36. An interesting discussion to be had about EOs, especially where there is overlap between whim and law. I think each order should judged upon its merits, a discrete action. As one who viewed, with no little alarm, Obama’s use of the mechanism to seemingly create legislation out of whole cloth, could I now give Trump a pass? This is about much more than simple intellectual consistency – the practice, in as much as it is exercised as a means to side step the Legislative branch, erodes the foundation of both the Republic and our very Freedoms.

    It is, I believe, axiomatic: a precedent set transforms itself into standard practice. Woe upon us if we allow unlawful action because: “Well, *they* did it”…

    Estarcarus (cd97e1)

  37. uptil I saw the bank draft 4 $6076 , I didnt believe …that…my cousin was realy earning money in there spare time from there labtop. . there mums best friend had bean doing th

    rayufa (09f835)


Powered by WordPress.

Page loaded in: 0.3369 secs.