Article II of the Constitution states that “the executive Power shall be vested in the President of the United States of America.” It further states that the President “shall take Care that the Laws be faithfully executed.” Presidents since Washington have often issued executive orders including for example the Emancipation Proclamation, President Truman’s order desegregating the armed services, or the executive orders of President Eisenhower, Kennedy, and Johnson desegregating schools and ending discrimination in federal programs. While a few Executive Orders, such as President Truman’s order seizing the steel industry, have been struck down by the courts, as long as the President is acting within his constitutional authority as the chief executive of the nation’s executive departments and not acting directly contrary to a federal statute, his orders are not subject to legal challenge. Indeed, they independently have the force of law.
Despite claims to the contrary, the President’s Executive Order Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act is clearly authorized by the Constitution, and consistent with the Patient Protection and Affordable Care Act itself and existing law and regulations. Section 2 of the Executive Order simply directs federal agencies to rigorously implement the express provisions of the Act requiring that premium credits and cost-sharing subsidies not be used to finance abortions. The Executive Order also implements the Act’s requirements that federal funds be strictly segregated from private premium payments that may be used to purchase abortion coverage. Section 3 of the Executive Order directs the Secretary of Health and Human Services to assure that all community health centers comply with the Hyde amendment, which governs their HHS appropriations, in all of their operations. The Secretary is also directed to update grant policy statements and issue new interpretive rules to make this clear. There is nothing in the Patient Protection and Affordable Care Act or existing law governing federally qualified community health centers that contradicts or limits the scope of this order. Indeed, the Order repeats longstanding regulations governing community health centers, which in turn simply interpret and implement that statutory mission of community health centers to provide primary care. This executive order is clearly legal.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.