Various commentators are saying the that “fix” announced yesterday is unconstitutional executive lawmaking.  (For example, Eugene Kontorovich here, Jeffrey Anderson here).

Maybe.  It should be bedrock constitutional law of executive power that the President cannot re-write a statute.  Simply put, there is no more fundamental principal of separation of powers than that.

It’s true that the President can, at least to some extent, decline to prosecute.  And some reports indicate that the President is relying on “enforcement discretion.”  That does not appear to correctly describe what is going on here, however.  If the law says that certain insurance plans are illegal, then they are illegal (unenforceable) contracts.  Perhaps the President can decline to prosecute insurers who issue illegal plans (although I have my doubts, based on prior discussions), but in any event he cannot make the plans legal.  Prosecutorial discretion — which is the only executive power, as against a law, that the President can claim here — is simply the decision not to prosecute.  Whatever its scope and limits, it does not extend to declaring a law no longer in effect.  That is the dispensing power, which the Constitution emphatically rejects in the take care clause.

I’m not sure that is what the President is doing, though.  My impression (though this is well out of my field) is that the cancellations were principally driven by regulations interpretating the statute, not the statute itself.  If that’s right, then I would think as a constitutional matter the President can suspend the regulations, which only themselves constitute executive action.  Some caution seems appropriate here.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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