- The Washington Times - Tuesday, November 29, 2011

Despite promises by Republican presidential candidates that they would gut key parts of President Obama’s health care law on their first day in office, Congress’ nonpartisan research agency says that trying to repeal major components of the overhaul through executive order just won’t work.

The Congressional Research Service has weighed in on questions of whether a Republican successor to Mr. Obama could halt portions of the Affordable Care Act by wielding an often-controversial power reserved exclusively for the president.

Courts likely would view an executive order to block new initiatives mandated by the law — such as insurance exchanges and a massive Medicaid expansion — as massively overstepping a president’s constitutional boundaries, the agency concludes.

“Such an executive order would likely conflict with an explicit congressional mandate and be viewed ‘incompatible with the express … will of Congress,’ ” says the report, issued in response to a request by Sen. Tom Coburn, Oklahoma Republican.

The conclusion casts doubt on assertions by GOP contenders Mitt Romney and Herman Cain that, if elected, they would immediately issue executive orders to block the most fundamental parts of the health care law until Congress could repeal the rest of it.

Last month, Mr. Romney told voters that he would use a waiver provision included in the law to let states opt out of the insurance exchanges, the individual mandate and the requirements for some employers to provide coverage or face fines.

As core parts of the health care law, those programs are legally out of reach for a president to overturn, the Congressional Research Service concludes. But Mr. Coburn, a strident opponent of the health care law, said the report still leaves open many opportunities for executive orders to be used to hinder the law.

The agency concedes that executive orders could be used on discretionary pieces of the law, where decisions about developing guidelines or implementing a program are left up to the Department of Health and Human Services.

“You can’t get rid of the exchanges, or the Medicare cuts or the Medicaid expansion,” Mr. Coburn said. “But you could absolutely gut the vast majority of it.”

Mr. Coburn said his tactic would be to target new powers afforded to HHS by the Affordable Care Act — which number some 1,700, according to research conducted by his office. He suggested issuing an executive order to limit the ability of the department to implement insurance exchanges. Or creating perimeters to limit the impact of any decisions issued by the Independent Payment Advisory Board, a panel charged with reining in Medicare costs.

“The point is, if I were president tomorrow, I would be issuing all of these until I got a Congress that would reverse it,” Mr. Coburn said. “The practical aspect of it is you could markedly lame this thing until you could get it repealed.”

Jonathan Turley, a law professor at George Washington University and frequent critic of the executive order, expressed agreement with the Congressional Research Service analysis, saying it distinguishes between required and optional functions of government — an important distinction to make.

“As chief executive, Obama has authority to establish policies that guide the use of the executive powers,” he said. “There’s a line between discretionary and mandatory duties. In the last decade, in my view, presidents have been crossing that line.”

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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