In a report requested by Dr. Coburn, the Congressional Research Service (CRS) provides an examination of what provisions under the new health care law could potentially be nullified by the President through the use of an Executive Order. The findings of the report confirm the President’s authority to issue an Executive Order to disarm and delay some provisions of the Patient Protection and Affordable Care Act, but that it is ultimately up to the American people to send individuals to Congress who will work to repeal and replace the law with a patient-centered, market-driven plan that lowers costs. The memo shows that, because the Secretary of Health and Human Services alone is given more than 1,700 new powers and authorities under the law, a President could use an executive directive to thwart some parts of the law. However, the core provisions of the bill – nearly $530 B in Medicare cuts for new government programs, an unsustainable Medicaid expansion, and the new Exchange entitlement structure and subsidies – require Congressional action to overturn.

Read the full report here.

Key Excerpts

• “Broadly speaking, executive orders are directives issued by the President. The President’s authority for the execution and implementation of executive orders stems from implied constitutional and statutory authority.” (p. 1)

• “The general framework for analyzing the validity of an executive order was delineated in Youngstown Sheet & Tube Co. v. Sawyer. In that case, the Supreme Court struck down President Truman’s executive order directing the seizure of the steel mills during the Korean War. Invalidating this action, the majority held that under the Constitution, ‘the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.’” (p.2)

• “The ability of a President to direct department or agency heads to take particular actions ‘within the sphere of that official’s delegated discretion’ is the subject of much debate among constitutional and administrative law scholars.” (p. 3)

• “On the one hand, if a President were to issue an executive order concerning discretionary actions by the Secretary, such an executive order—depending on its content—may be within the President’s generally recognized powers to provide for the direction of the executive branch.” (p.4)

• On the other hand, an executive order on discretionary actions by the Secretary—depending on its content—may be viewed as beyond the President’s authority under Youngstown, as Congress chose to delegate discretionary authority to the HHS Secretary, not the President.” (p.4)

• “Under the second Youngstown category, in which Congress has neither granted nor denied authority to the President, the President acts in reliance ‘upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.’” (p.5)

• “A President would not appear to be able to issue an executive order halting an agency from promulgating a rule that is statutorily required by PPACA, as such an action would conflict with an explicit congressional mandate.” (p.5)

• A President would not appear to be able to issue an executive order halting statutorily-required programs or mandatory appropriations for a new grant or other program in PPACA, and there are a variety of different types of these programs.” (p.7)