First Executive Order of POTUS 45?

Update: Based on the Federal Register published January 24, 2017, this is indeed the first official executive order of POTUS 45. It is order number 13765. The final Obama executive order is 13764.

The “From the Press Office” section of the White House website has not been updated since it was scrubbed shortly after noon EST Friday, January 20, 2017. As a result, the executive orders reported in various news media since then are not available to the general public yet. I had been waiting to find and read the official orders there before commenting, but it appears it will be a while before they will be available.

Because the media have so widely reported the signing of executive orders, I have searched numerous times online trying to find any other sites that might have full text of those orders, but so far have found only a couple of news sites that have posted the full text of only one order. For now, I am going to consider it the first one issued by POTUS 45, although eventually I should be able to find all orders and the sequence in the Federal Register.

The most talked about order is the one related to the Affordable Care Act. I’ve chosen to link to the first site that I found had posted the full text. Special thanks to David Kurtz, Managing Editor and Washington Bureau Chief of Talking Points Memo, who posted the full text of EXECUTIVE ORDER – MINIMIZING THE ECONOMIC BURDEN OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT PENDING REPEAL.

This is a brief order – just one page – with standard language at the beginning declaring authority for the action and at the end with the normal disclaimers regarding what is not authorized by this action. Despite its brevity, it is a significant order.

Media reports and pundit comments have been all over the board on this one. Some see it as significant because of the potential for radically reducing the effectiveness of the Affordable Care Act (ACA). Others say the order doesn’t say anything significant or actually do anything. My view is it is significant for several reasons.

First, it is symbolically important. It was essential for the new administration to follow through on the promise to do something about the ACA the first day in office. Just issuing this order meets that expectation of his minions and he can say he did what he promised to do.

Second, as general and broad as the language of the order is, it is clearly a signal that repealing and replacing the ACA is a priority and expectation of this president. If the Congress does not act to do so, the president will have more ammunition to fire at the “GOP establishment” he has so often railed against.

Third, issuing broad powers to all executive department leaders (of those departments that have any part in implementation of ACA) to do what they can to “minimize the unwarranted economic and regulatory burdens of the Act” is an important directive that could well lead to significant implementation changes eventually.

Fourth, as noted in a useful Vox article posted yesterday, some of the language is quite telling.  Two items were cited as significant by health law expert Tim Jost, a law professor at Washington and Lee College, (who was interviewed by Sarah Kliff, the author of the Vox article). The first is a phrase used at the beginning of three paragraphs of the order – “To the maximum extent permitted by law…” The significance of that phrase is the clear recognition that the president cannot change legislation unilaterally. [Ed. note: For an autocrat, that is an important implicit admission.]

The second item: the order states all regulatory changes will follow the Administrative Procedure Act. That is significant in that no regulatory changes happen overnight. There is a long, detailed process for developing, commenting on, and eventually issuing regulations for any act of congress.

In addition to the above, I think it is possible to glean from this order something of how this president is going to operate. Because I have so little confidence in his abilities, I suspect he personally had relatively little to do with the drafting of this order other than saying in broad terms something to the effect of “do what you can to gut Obamacare”. He may not have even read the order before signing it, and if he did, I doubt he understood the language fully. If I am correct, that is actually a bit of good news. It means he is going to trust his legal team to write his executive orders and they are not going to go outside the law. I also think the authorization of the department heads to act may be a signal of what is to come in this administration – a deep delegation to his team. Could be good news or bad news depending on the competence of the department secretary, if that is true. Overall, I think this will be good because the last thing we need is for him to attempt to micromanage what he has no ability to comprehend.

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