At Josh Blackman's Blog: Undone: With His First Executive Order, President Trump Begins The Repeal of Obamacare. An extensive discussion, including this observation:
On cue, ardent defenders of President Obama’s executive actions have now discovered the separation of powers.
The post includes the full text of the order. The key passage from the executive order is this one (Section 2):
To the maximum extent permitted by law, the Secretary of Health and Human Services [and other executive officials] … 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.
As Professor Blackman observes, much depends on what "the maximum extent permitted by law" means — but during the Obama administration there was plenty of talk that the President's non-enforcement discretion allows basically unlimited nonenforcement. The post notes various commentators arguing about the extent that the Affordable Care Act grants statutory discretion. But doesn't the President also have constitutional nonenforcement discretion? And doesn't that qualify also as the "extent permitted by law"?
Posted at 11:53 AM