I had a vigorous Twitter exchange with the very smart and non-radical Stuart Stevens, Mitt Romney’s campaign manager, on Friday, after President Obama issued his executive order on immigration. Stevens asked about the parallel if George W. Bush, stymied by a Democratic Congress in his final two years over his plan to create private accounts in Social Security, had issued an executive order allowing people not to pay their FICA taxes and put the money into private accounts. Stevens said it would be justified as a way to protect the elderly. I noted that I would not defend Democrats refusing to talk to Bush about Social Security, but also that unlike immigration, there is no explicit leeway for the president to mess with the Social Security Trust Fund, and that depleting the fund would actually harm the elderly, not protect them.
But beyond a question of parallels, my exchange with Stevens prompted me to remember a central pledge from the Romney campaign in 2012—effectively to blow up Obamacare through executive action. Here, in the words of Lanhee Chen, Romney’s domestic-policy guru, is what Romney would have done from his first day in office, without trying to compromise with or negotiate with Congress:
A Democratic Senate would probably have blocked efforts to repeal Obamacare, leaving Romney to halt or reverse the law through executive action. As promised, he would have found a way to issue waivers from Obamacare to states so that they could pursue their own health-care reforms.
But at the end of the day, Obamacare would still be the law, partisan gridlock would still cast its shadow over the policy-making process, and President Romney’s executive actions would be the source of myriad legal challenges from the law’s supporters.
Let’s consider each of these actions separately. First, thwarted by the Democratic-controlled Senate, Romney would have issued an executive order suspending the establishment of the Obamacare exchanges, freezing funding for implementation of the law and creating broad exemptions from the individual mandate.
He also would have suspended or rewritten any regulations issued by the Obama administration that had the potential to increase health insurance costs, displace patients from their existing health insurance coverage, or restrict choices for consumers.
By taking these sweeping steps, Romney would have acted unilaterally to thwart the intent and specific language of the law. Compared to extending protections from deportation to family members of those already under the umbrella of protection, or making choices about deportation when Congress, by providing much less funding for that purpose than necessary to deport all undocumented people, explicitly gives the president discretion to make choices, Romney’s proposed moves were more daring, more cutting edge, more of an application of executive power to the max.
I have searched to find cases of conservative lawmakers like Ted Cruz, or constitutional scholars, much less columnists like Charles Krauthammer, raising alarm bells about this brazen plan to short-circuit the policy process, give the middle finger to the Senate, and thwart a duly enacted law, or raising questions about an imperial president-to-be shredding the Constitution. Strangely enough, I can’t find any.
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