Getting to the bottom of the executive order proposal, and what that means for health care vote

Charles T. writes:

You wrote:

The remaining Stupak group consists of six members, and apparently the leadership is still trying to craft language that will get the Stupakites aboard.

I love it. The two words in the sentence above speak volumes about what is going on. Those two words are: “craft language.”

This is semantic gymnastics. Any agreement that comes from “craft language” is an agreement that can be discarded at a later date. I really did think the Dem pro-life group would cave in earlier to the attempts to “craft language” since Stupak wants to vote for the bill. Perhaps the Stupak group realizes they are being lied to when it comes to “crafting language.” Perhaps they realize how devastating this bill really is. Or perhaps, they will accept an agreement, knowing the chances are high the chief executive will discard such an agreement in the future. Yet, they will still have an excuse for their constituents at election time: Obama made pro-life exceptions for our convictions!

LA replies:

Yes, as indicated by the reader’s comment at the Corner in the previous entry pointing out that if Obama issued an executive order banning federal funds for abortion, he could issue another order rescinding the first order. But an even more consequential argument comes from the U.S. Conference of Catholic Bishops, in a statement sent this morning to congressional aides. Here is the key part of it:

Unfortunately, this proposal [to resolve the abortion funding issue through executive order] does not begin to address the problem, which arises from decades of federal appellate rulings that apply the principles of Roe v. Wade to federal health legislation. According to these rulings, such health legislation creates a statutory requirement for abortion funding, unless Congress clearly forbids such funding. That is why the Hyde amendment was needed in 1976, to stop Medicaid from funding 300,000 abortions a year. The statutory mandate construed by the courts would override any executive order or regulation. This is the unanimous view of our legal advisors and of the experts we have consulted on abortion jurisprudence. Only a change in the law enacted by Congress, not an executive order, can begin to address this very serious problem in the legislation.”

[end of Bishops’ statement]

To sum up: if there is federal legislation funding health care, it must, under judicicial interepretations of Roe v. Wade, fund abortions, and this requirement can only be overridden by other legislation (e.g. the Hyde Amendment, or the Stupak Amendment to the original House bill), not by an executive order. Therefore the executive order that is being bandied about cannot possibly alter the bill to Stupak’s requirement that no federal funding of abortion be allowed under the bill.

James N. writes:

This Stupak business is SO stupid!

Executive orders cannot modify legislation—if they could, the line item veto would be constitutional, which we know it is not.

LA replies:

But that commenter at the Corner was onto something. People are gullible, and it’s possible that the Stupak group (what remains of it) will sign on to the executive order deal thinking that this will mollify their pro-life constituents. But if Stupak did that, he would have destroyed his reputation as a man of integrity, having said over and over that he will never sign a bill that allows federal funding of abortion.

But if what I just said is correct, why did he open himself to a deal based on an executive order?

It seems we’re looking at another Stupak Paradox. From everything we know about him and about the underlying legal issues, it is IMPOSSIBLE that Stupak would sign on to a deal involving an executive order, BUT he has expressed interest in such a deal. How can this Paradox be resolved?

Here’s my best guess at the moment. Stupak went into this not realizing that an executive order cannot achieve what he wants. When he realizes this, he will back out of the deal, and he will vote no on the health care bill, and the health care bill will lose.

Posted by Lawrence Auster at March 21, 2010 01:13 PM | Send