Could President Obama snatch victory from the jaws of defeat by issuing an Executive Order? (I'm "thinking out loud" here, late at night, so please bear with me.) Let's fancifully call this order the "Order Blocking Activation of Mandate Authority Under PPACA, Soliciting Enactment of Taxing and Spending Clause Obligation Undergirding Regulatory Treatment, or OBAMA UPSETS COURT. (And lets call that "OUC" for short.)
Such an order, which has the force of law and is based on the President's power to Faithfully Execute the Laws, might say roughly this:
The mandate in the PPACA that most citizens who are not otherwise covered by medical insurance, which invokes the Commerce Clause and the Necessary and Proper Clause, has raised constitutional questions about the degree of possible expansion of federal powers under those Clauses. In deference to that concern, and based on my belief that the mandate would unquestionably be a lawful exercise of federal power under the Taxation and Spending Clause and the Necessary and Proper Clause, I therefore issue the following Executive Order:
(1) The Executive Branch of the Federal Government will not enforce the provisions of PPACA mandating participation in the program until and unless one or more of the following occurs:
(a) A statute is enacted stating that the federal authority for issuing the mandates is grounded in the Taxing and Spending Clauses and the Necessary and Proper Clause rather than the Commerce Clause.
(b) A statute is enacted providing those covered by the mandate the option to purchase private health insurance offered through the Federal Government rather than by private entities.
(c) The Supreme Court declares the current operation of the mandate under the Commerce Clause (and N&P Clause) to be constitutional.
The President could then announce that a petition was being filed to the Supreme Court stating that the case at bar was either moot or not ripe based on the promulgation of "OUC," the above Executive Order.
I have very little idea of whether "OUC" would work, although in additional to publishing it here I'm going to pass it along to some Con Law professors I know who will have a better idea of whether it would. My reasoning is this:
(1) If the problem is that PPACA presents an uncabined potential expansion of the Commerce Clause, this "OUC" Executive Order would strike that dead. The Commerce Clause (bolstered by the Necessary and Proper Clause) would no longer be the basis of the mandate as altered by the Executive Order. The concern about forcing people into commerce with private entities so that they would be regulated by private entities goes away.
(2) What also goes away, of course, is the regulatory scheme of market expansion that undergirds the plan -- but let's be frank: the fact that that system provided no penalties for noncompliance means that insurers couldn't be assured that they would actually get all of those new customers to expand the regulated market anyway. (To the extent that getting people to sign up depending simply on moral suasion and appeals to patriotism, it still would.) What this means is that insurance companies would freak out and start screaming. However, there are fixes provided for in the very executive order itself -- and their screaming could be for implementing one.
(3) Does this mean that Congress is being betrayed by the Executive Order? No. The President's responsibility is to enforce the laws and respect the constitution. If a part of the law isn't enforceable, he can't enforce it. This is not the sort of Executive Order that Rick Perry was talking about, which could wipe away the duly enacted law based on his antipathy for it alone. This would represent a proper exercise of the President's executive power, eliminating only unconstitutional provisions, even if it arguably leaves us with a bill that would not have passed in the first place. (That's the gamble a legislature takes!) Essentially, what it does is to insert the severability clause (regarding this requirement) that was missing from the bill itself.
(4) Congress is now in a tough spot. The insurers are in substantial trouble if the don't pass the proper justification for the bill (with or without a public option to avoid the "making people take part in the market and then engage in private commerce" issue entirely.) At this point, the Supreme Court can't save them. The case is either moot (as there is no potential for "abusive" and uncabined extension of Commerce Clause powers) or not ripe (as, for now, no one would be subject to the mandate.) The question of whether the Taxing and Spending authority would justify the mandate is not now before the Supreme Court. My guess is that Congress has no real choice but to save the insurance industry by passing this alternative authorization for PPACA. If it doesn't -- well, let it argue with insurers.
I can imagine various arguments against the President's ability to do this, but so far I am not impressed with any of them. It may seem like "dirty pool," but he can do it -- and, in fact, arguably has to do it to if a severable portion is unconstitutional. This is always a problem when one has a severability provision in a contract or a law -- can one live with the remainder if one portion is found to be void? By preempting the Court's actions, Obama would leave the Court without a live controversy.
An interesting metaphor occurred to me just now. Justice Scalia said that if the heart -- in his metaphor, the Commerce-Clause-justified mandate -- is taken out, then the whole body dies. But that, as Dick Cheney's recent experience reminds us, is simply not so. Cheney's heart was taken out, and a new heart -- in my metaphor, the Taxing-and-Spending-Clause-justified mandate -- was transplanted in. And, if Congress refuses to play along at all, the "patient" with an otherwise healthy circulatory system may still be able to be kept alive indefinitely on a heart-lung machine -- metaphorically, the operation of PPACA without the mandate -- for a long time.
Like I said -- it's very late here and I don't know if I'm overlooking something major. But the mere possibility of an OBAMA UPSETS COURT Executive Order, until someone points out compelling flaws in it -- is what will help me sleep soundly tonight.