According to Vice-President-elect Pence, “We’re working now on a series of executive orders that will enable that orderly transition to take place even as Congress appropriately debates alternatives to and replacements for ObamaCare.”
This talk about using executive orders to assure an “orderly transition” is a bit confusing. An E.O. has legal force “only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.” Authority to implement the ACA, however, is vested in the Secretaries of HHS, Treasury, and Labor—not the President. In the context of the ACA, an executive order won’t be anything more than a document containing a president’s instructions to his subordinates.
That’s why, as Tim Jost details here, President Trump can’t use E.O.s to change the rules that have been adopted to implement the ACA. To do that, agency officials would have to undergo cumbersome rulemaking processes. Guidance documents are easier to withdraw and amend, but an E.O. probably can’t do the job (although strong proponents of the unilateral executive might argue otherwise). Instead, the E.O. would instruct Secretary Price or Secretary Mnuchin to withdraw or amend the guidance that their predecessors adopted.
HENRY KOTULA 