A new memo from the Congressional Research Service explains that the next president cannot simply stop ObamaCare (“PPACA”) by executive order:

[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. Such an executive order would likely conflict with an explicit congressional mandate and be viewed “incompatible with the express…will of Congress”…However, there may be instances where PPACA leaves discretion to the Secretary to take actions to implement a mandatory program, and…an executive order directing the Secretary to take particular actions may be analyzed as within or beyond the President’s powers to provide for the direction of the executive branch.

In other words, the worst elements of ObamaCare — the government price controls it imposes on health insurance, the individual mandate, and the new spending on health-insurance entitlements —  are “statutorily required programs” that, say, President Romney cannot repeal or even halt by executive order.

However, there is one executive order that could effectively block ObamaCare, and that lies well within the president’s powers.

The Obama administration has issued a proposed IRS rule that would offer “premium assistance” (a hybrid of tax credits and outlays) in health insurance “exchanges” created by the federal government. The only problem is, ObamaCare only authorizes these tax credits and outlays in “an Exchange established by the State.” The administration did so because without premium assistance, ObamaCare will collapse, at least in states that do not create their own Exchanges.  Yet the executive branch does not have the power to create new tax credits and outlays.  Only Congress does.  So if the final version of this IRS rule offers premium assistance in federal Exchanges, it will clearly exceed the authority that Congress and the Constitution have delegated to the executive branch.

In that case, the next president could issue an executive order directing the IRS either not to offer premium assistance in federal Exchanges or to rescind this rule and draft a new one that does not. The U.S. Constitution demands that the president “take Care that the Laws be faithfully executed.” Such an executive order therefore lies clearly within the president’s constitutional powers: it would ensure the faithful execution of the laws by preventing the executive from usurping Congress’ legislative powers.

While such an executive order would not repeal ObamaCare, as Jonathan Adler and I explain in this Wall Street Journal oped, it would “block much of ObamaCare’s spending and practically force Congress to reopen the law.”

One Executive Order That Could Stop ObamaCare is a post from Cato @ Liberty - Cato Institute Blog

President Obama’s “Regulatory Review” executive order, issued this week, has no effect on the regulatory environment that I can discern. It essentially encourages agencies to continue doing the thinking and analysis they are doing so poorly under existing law and executive decree. I called it “a cosmetic, symbolic effort” in the Washington Examiner and—you’ll get the backstory here—also speculated that it’s an effort to change the subject. “Regulatory review” has briefly turned the press away from the government’s huge, ongoing spending spree, and the pall of uncertainty that President Obama has cast over the economy with projects like his re-design of the American health care system.

But don’t take that as an endorsement of the Republican program. Yesterday, House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) issued a statement endorsing the E-Verify program, which deputizes large and small businesses into a federal government document-checking program. You’d think that clearing out regulatory underbrush and getting people to work would be part of the Republican program, but Johnson said, “I will work with my colleagues and key stakeholders to design a verification system that prevents illegal employment while safeguarding the jobs, identities and privacy of U.S. citizens.” Can’t be done.

If you want to get a taste of the complexity, privacy consequence, and cost of E-Verify as it struggles through its nascent stages, take a look at this truly excellent summary of a recent GAO report. The system now prohibits the employment of around 26 people for every thousand potential new hires, down from 80—and that’s the good news!

There’s much bad news. (The always-understated Government Accountability Office says “significant challenges.”) Identity fraud and employer noncompliance are (predictably) growing, so U.S. Citizen and Immigration Services is negotiating to get access to driver’s license data from state Departments of Motor Vehicles. Along with state bureaucrats, federal bureaucrats are (predictably) weaving together the national identity infrastructure that the American states and people rejected with the REAL ID Act.

And then there are costs. The last thing we need is more government overspending, right? So USCIS and the Social Security Administration are hiding it. Says the ever-accomodating GAO:

USCIS’s cost estimates do not reliably depict current E-Verify cost and resource needs or cost and resource needs for mandatory implementation. While SSA’s cost estimates substantially depict current E-Verify costs and resource needs, SSA has not fully assessed the extent to which its workload costs may change in the future.

This is the intrusive, costly program that the House Republican majority is falling in line behind, a clear sign that business-as-usual is business-as-usual for both parties. It’s a record-setting rejection of the Tea Party zeitgeist that put them in power. Where does it say in the Constitution that every employment decision in the country can be run past the federal government for approval?

And Then You’ve Got Your Pro-Regulatory Republicans… is a post from Cato @ Liberty - Cato Institute Blog

The House passed a repeal of Don’t Ask, Don’t Tell (DADT) yesterday, and it appears that the Senate will take up the measure sometime next week. Good.

DADT should end. I’ve said so, and debated the issue with repeal opponent Stuart Koehl (posts 1, 2, 3, and 4). Most servicemembers I know (appropriate disclaimer here) already have a mindset of Don’t Ask, Don’t Care, and its time for official policy to catch up.

We should note that a legislative effort is the right way to change the current policy. DADT is based on a law – 10 U.S.C. § 654 – enacted with the FY1994 National Defense Authorization Act.

Some have argued (and here, and here) that President Obama could stop enforcing DADT by executive order. The President does have control over enlisted separations under 10 U.S.C. § 12305 and officer separations under 10 U.S.C. § 123. But, as Gene Healy noted in a recent column, “it would be kinda cool if our representatives got to vote on [policies] before they became the law of the land.” More than kinda cool, it would comply with the Constitution, which gives Congress the authority “To make Rules for the Government and Regulation of the land and naval Forces.”

The repeal legislation also deals with the legal and policy questions that are implicated with DADT repeal. This is important in a couple of ways. First, the policy change is phased in over time, giving the services time to adjust policies.

Second, as I said at this event, the sexual offenses in the Uniform Code of Military Justice (UCMJ) are a mess that Congress needs to untangle along with repeal. Article 125 of the UCMJ criminalizes all sodomy – heterosexual, homosexual, consensual, or otherwise. As this article points out, the Court of Appeals for the Armed Forces’ decision in United States v. Marcum wounded Article 125 in the wake of Lawrence v. Texas, but did not kill it. The definition of “sexual intercourse” in the UCMJ only includes sex between a man and a woman, so the offenses of adultery, prostitution, and patronizing a prostitute under Article 134 of the UCMJ don’t apply when committed in a homosexual manner. The UCMJ should adopt a uniform standard – criminalize sexual behavior that is prejudicial to the good order and discipline of the armed forces, period. The DOD Report takes this into account (see pp. 138-39) and Congress and the military will have a chance to sort things out as repeal is under way.

In short, repeal is the right thing to do, and passing this law is the right way to do it.

House Bill Repeals DADT the Right Way is a post from Cato @ Liberty - Cato Institute Blog

The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.

This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.

This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.

The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.

Fixing Detention is a post from Cato @ Liberty - Cato Institute Blog

Yesterday, President Obama coupled his lifting of an executive order banning federal funding for embryonic stem cell research with the signing of a memorandum directing “the White House Office of Science and Technology Policy to develop a strategy for restoring scientific integrity to government decision making.” In other words, at the very moment he was directly injecting politics into science by forcing taxpayers to fund research that many find immoral – and that could be funded privately – Obama declared that he wouldn’t politicize science.

Don’t insult our intelligence. When government pays for scientific work that science is politicized. Yes, it could be argued that government not funding something is also political, but which is inherently more politicized, government forcing people to fund research, or leaving it to private individuals to voluntarily support scientific endeavors they believe of value?

You don’t have to be a scientist to grasp the obvious answer to that one.  And as I’ve laid out very clearly regarding education, this kind of compelled support ultimately leads not only to ugly politicization, but social conflict and division.

Culture wars, anyone?

The rhetoric supporting federal funding of embryonic stem cell research – and lots of other science – may sound noble, but the means-ends calculations are anything but. They are divisive incursions on liberty, and make political conflict inevitable.

Mr. President, If You’re Involved It’s Already Politicized is a post from Cato @ Liberty - Cato Institute Blog