UPDATED! STUPAK SELLS OUT FOR EO! …Bribing the health care Dem stragglers with promise of Presidential EO power

UPDATE 12:50pm PAC time: A’waiting Stupak to reemerge from WH to see if his support could be purchased via Obama EO.

UPDATE 12:32pm PAC time: The House is beginning the procedural debate already. Pelosi and House may, or may not offer the rule change. We’ll have to wait and see. Pelosi holds her strategy cards close to the bosom. It could be used as a delay tactic, while the WH continues to work over Stupak.

It’s almost a laugh, watching desperate Dems scratch, claw and make sundry last minute back room deals to push O’health care over the top today. I say a laugh because the reality is this…. as of this AM, the verbal media reporting (that’s a caveat emptor all on it’s own…) is that Pelosi is likely to bypass using a Resolution for a rule change, and having the House Dems vote to accept the Senate version of HR 3590, passed Dec 24th. Following that, they vote on a reconciliation bill.

However that reconciliation bill has to also be accepted by the Senate, sans any changes, to be in force. Any changes mean it again runs back thru the House for another vote, and coming together on the changes.

This means that the only agreed to text via bills is the acceptance of the Senate amended House health care bill. No agreement on all these backroom deals makes a whit of difference as to what is law of the land if they aren’t agreed to in both chambers.

Thus the uphill battle for Dem caucus consensus.

One of the biggest holdouts is Stupak and hold outs based on abortion language that is found in the Senate bill. Today, the Hill reports that Dem leadership negotiators are offering up an Obama Executive Order to “fix” Senate legislation by banning any federal funds for abortion. Real Clear Politics mentions the same.

WTF? First of all, no one has approached the WH about this Executive Order, via the news reports. Tho there is little doubt that if the promise of such from Obama may appease the Dem dissenters, he’d jump on it.

But since when can an Exective order have the statutory authority to override Congressional legislation? House Whip Eric Canton says it can’t.

Democrats had been talking of using an executive order to prohibit federal funding of abortion, since it is not included in the Senate health care bill the House is currently trying to pass. Several House Democrats are refusing to vote for the bill unless there is a safeguard against federal funding of abortions.

Cantor’s office cited several Supreme Court rulings and the opinion of several pro life organizations explaining why any attempt to fix the abortion problem in the health care bill through executive order won’t hold up:

US Conference of Catholic Bishops: “No regulation, policy letter from HRSA, or other executive action can withstand a statutory mandate, construed by federal courts applying a constitutional decision on abortion.”

National Right to Life Committee: “If the [Senate] bill is signed into law, these statutory requirements and defects are not subject to correction or nullification by the chief executive or his appointees, whether by Executive Order, regulation, or otherwise.”

Americans United for Life: “The proposal to address the problem of abortion funding in the health care bill through use of an Executive Order is a tacit acknowledgment that the bill as it stands is pro-abortion legislation … [I]t also does not succeed in application. An Executive Order cannot prevent insurance companies that pay for abortions from participating in the exchanges. Further, Executive Orders can be undone or modified as quickly as they are created. This is a blatant attempt to subvert democracy and should be quickly quashed.”

Family Research Council warns against the promise of: “an Executive Order (EO) that would magically fix the fact that the Senate bill (H.R. 3590) would spend government funds to pay for elective abortions. Further, the Reconciliation bill will make matters worse by increasing funding for community health centers, which will bypass any abortion funding restrictions in appropriations bills because it is directly appropriated. Both taken together will fund abortion, regardless of any EO.”

The power of Presidential Executive Orders is a tricky one. Reading a CATO analysis of the runaway POTUS power, penned back in 1999, it is a problem that has been exacerbated by Congress itself as it increasingly delegates it’s authorities to newly created agencies that fall under control of the Executive Branch. One such example is the former Congressional authorities that will be delegated to Obama’s IMAC panel of appointees upon bill passage. These appointees would assume increased authority to dictate Medicare payments and coverage, only held in check by Congress by a joint resolution to disapprove their recommendations to the President within 30 days. I wrote about the Obama proposal on the IMAC back in August of last year. Obama’s IMAC (Independent Medicare Advisory Council) has been incorporated into the Senate passed version of healthcare bill with a new name… IMAB (Independent Medicare Advisory Board), starting on pg 982 of the 2409 pg bill.

Does Obama have clear Constitutional or statutory authority to override legislative objectives, as attempted in historic great numbers by his Dem predecessor, Bill Clinton?

In a moment of irony, considering his abuse of EO’s, I’ll use Clinton’esque phrasing: it would all depend upon what the meaning of “clear authority” is. Per Cato examples:

Where a presidential directive is clearly authorized by the Constitution or is authorized by a statute authorized by the Constitution and the delegation of power is in turn constitutional, the directive has the force of law. President Andrew Johnson’s proclamation of December 25, 1868 (“Christmas Proclamation”), which granted a pardon to “all and every person who directly or indirectly participated in the late insurrection or rebellion,” was clearly authorized by the Constitution. The Supreme Court declared the proclamation to be “a public act of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect.”50 The authority for President Johnson’s proclamation is found in Article II, section 2, clause 1 of the Constitution, which grants the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

President Washington’s Whiskey Rebellion proclamation is an example of a presidential directive clearly authorized by a statute. On August 7, 1794, Washington issued a proclamation ordering persons participating in “combinations to defeat the execution of [federal] laws” to cease their resistance to the collection of the federal excise tax on whiskey. That proclamation was issued pursuant to a 1792 statute empowering a president to command insurgents, by proclamation, “to disperse and retire peaceably to their respective abodes within a limited time.”51 The president was also empowered by the statute to call out the militia “to suppress such combinations, and to cause the laws to be duly executed.”52

What is clear is that overriding Senate legislation to restrict funding they allow by Executive Order does not fall into “clear constitutional or statutory authority.”

In the Heritage Foundation’s study of the Use and Abuse of Executive powers from 2001, they also cite clear authority.

Head of State.16 The President is solely responsible for carrying out foreign policy, which includes the sole power to recognize foreign governments, receive foreign ambassadors, and negotiate treaties. Congress may enact laws affecting foreign policy, and two-thirds of the Senate must ratify any treaty before it becomes binding law, but Congress must still leave the execution of foreign policy and diplomatic relations to the President.

Chief Law Enforcement Officer. The President has the sole constitutional obligation to “take care that the laws be faithfully executed,”17 and this grants him broad discretion over federal law enforcement decisions. He has not only the power, but also the responsibility to see that the Constitution and laws are interpreted correctly.18 In addition, the President has absolute prosecutorial discretion in declining to bring criminal indictments. As in the exercise of any other constitutional power, one may argue that a particular President is “abusing his discretion,” but even in such a case, he cannot be compelled to prosecute any criminal charges.

Head of the Executive Branch. The Framers debated and rejected the creation of a plural executive. They selected a “unitary executive” and determined that he alone would be vested with “[t]he executive power” of Article II. After much debate, the Framers also determined that the President would nominate and appoint (with the Senate’s consent in some cases) all officers in the executive branch. With very few exceptions, all appointed officials who work in the executive branch serve at the will and pleasure of the President, even if Congress has specified a term of years for a particular office.19 All of this was designed to ensure the President’s control over officials in the executive branch20 and to promote “energy in the executive.”21

Again, overriding legislative objectives by saying what can or cannot be funded doesn’t fall into any of these categories. Indeed, the Heritage goes into detail on how many Executive Orders throughout history have been struck down by the courts, or have been repealed or modified thru Congressional legislation after the fact.

In this case, the Senate has no appetite to change their abortion language, as their clear object to the Stupak amendment is on record. So would an Obama EO stand as legitimate under scrutiny?

Much would depend upon the precedents and argument of any challenge, of course. Courts don’t improve on deficient legal complaints with arguments off tangent. Thus any lawsuit is only as good as the presentation is thorough, and the challenges clearly laid out and supported by precedent.

What also may be a legitimate question is if that EO authority to control funding, despite legislative text, because Congress gave over authority of control to an agency under the thumb of the Executive Branch.

Again, the slimy promises and questionable assumption of power continue by a party desperate to get this passed. Indeed, it seems that now the passage has achieved new lows by appealing to the Dem holdouts as a measure to save not only Obama’s Presidency, but possibly Pelosi’s speakership. These bottom of the barrel promises and reasons only reinforce that, as of Sunday morning, their confidence of support in a vote is still lacking.

And perhaps the greatest injustice and absurdity of it all is, all the promises in the world by House and Senate leadership – or Obama himself – to fix disagreeable legislation will not undo that a “yes” on the Senate amended HR 3590 becomes law of the land.

What Pelosi, Reid and Obama are offering to the House Dem opponents is a promise that the Ferrari, equipped with the Volkswagon engine, they are selling will be swapped out with the Ferrari engine after they plunk down the money.

If the House Dems are dumb enough to buy that bridge to nowhere on a wing and prayer – plus banking on questionable Presidential EO power – they will be facing the wrath of their constituents at home.