The Unconstitutionality of the “Stupak” Executive Order

Bart Stupak and the rest of his “Stupak 12” just got hoodwinked by the President.  The President and the group agreed to an executive order stating that the “Hyde Amendment” which is voted on every year to forbid HHS Deparment funds from being used to fund abortions applies to the health care reform bill.  In return, the Stupak “12” agreed to vote for Health Care Reform.  But the President, acting alone, cannot enact this restriction without Congressional authorization.

The President’s Executive Order would be lawful if he were delegated the authority to restrict the funding of abortion. But unless I am missing something, the HCR never delegated him that power.  As Democrats protested during the Bush administration, the President is not authorized to issue executive orders unless he has been delegated such authority by the Congress.  That is what much of the detainee litigation involved.  While an Executive Order has the force of law, it can only be issued under statutory or constitutional authority.  I have seen no authority here.  If it existed, don’t you think that Republican Presidents would have used it before.  There would be no need to vote on the Hyde Amendment every year.

Expect challenges by NARAL, Planned Parenthood and others to follow as soon as it is issued.  I think is why the pro-choice caucus of the house dems went along with this.  They know it is constitutionally suspect.

The President’s Executive Order would be lawful if he were delegated the authority to restrict the funding of abortion. But I have not read any thing that suggests that the HCR ever delegated him that power. As Democrats protested during the Bush administration, the President is not authorized to issue executive orders unless he has been delegated such authority by the Congress.

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3 Responses to “The Unconstitutionality of the “Stupak” Executive Order”

  1. Tyler Says:

    Is it really true that the President is not authorized to issue executive orders unless he has been delegated such authority by Congress? Even in traditional areas of executive power? This seems to fly in the face of separation of powers, and to be somewhat contradictory to Youngstown Sheet and Tire. I didn’t follow the detainee litigation closely so it could be the case, but it would seem to make the Executive branch mere window-dressing as opposed to an independent branch of government.

    I sincerely doubt that an issue of this magnitude would not have been reviewed by the legal advisors of both sides. It seems incredibly unlikely that one side “hoodwinked” the other in this situation.

  2. mschonholz Says:

    While the executive branch has the constitutional authority and responsibility to execute the laws, they cannot rewrite them. That is clear from City of NY v Clinton. Under Chevron, if their interpretation of a law is plausible (and not in conflict with the plain meaning of the text) it will be upheld. ANd in Youngstown, the court held that the President’s power is at its greatest when acting on authority given to it by Congress, and at its lowest when acting specififically in contravention to what Congress said. At best the Congress is silent on this issue. But a court might look at the fact that they pass the hyde amendment every year, which cover HHS appropriations and think that this impliedly means that President is not authorized to limit the uses of other funding. If Congress does not limit the HCR use of funds in this way, it is hard to see how the executive branch could add criteria to it. If they are delegated authority to decide criteria for getting funding, that is oen thing. But I do not think they have been granted such authority.

  3. mschonholz Says:

    I can’t believe I actually forgot the most important point: the original House version of the legislation originally include the stupak language. However, the Senate specifically replaced the stupak provision with something else. The house ultimately passed the revised senate language. A court will find these legislative actions highly relevant when deciding what authority the president was given or had.

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