In a previous post, I asked but did not answer the question whether President Trump's executive order on Obamacare, coupled with an aggressive application of prosecutorial discretion, could allow him to effectively suspend Obamacare by presidential authority alone. Here is my answer.
The order states:
To the maximum extent permitted by law, the Secretary of Health and Human Services [and other executive officials] ... shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.
As I noted, the key question is: what does "the maximum extent permitted by law" mean? Let's leave aside the question of what statutory authority may exist. My question is what constitutional authority exists, apart from what's granted by the statute.
My thinking on this issue evolved somewhat during the debate over President Obama's partial nonenforcement of the immigration laws. Though initially skeptical, I became persuaded that the President has fairly broad constitutional power of prosecutorial discretion, at least absent a statute specifically constraining it. However, as this post indicates, I concluded that the power is limited in its effect by being strictly a power to decline to prosecute. It does not allow the President to suspend or alter the actual law in any respect, including by formally relieving individuals of their obligation to comply. All the President can do is refrain from acting.
On this ground I concluded that President Obama's immigration policy was apparently not authorized by the President's constitutional power because it seemed to do more than merely decline to enforce; it constituted a change in the law by changing the formal legal status of certain categories of immigrants. (The policy might nonetheless have been authorized by statute, as discussed further below).
For the same reason, I think the Constitution does not give President Trump independent power to do what he calls for in his executive order. I do think (consistent with the discussion above) that he can decline to prosecute violations of the statue's requirements, and indeed I think he likely can adopt an official policy of nonenforcement. However, the executive order calls on executive agencies to "waive, defer, grant exemptions from, or delay the implementation of" requirements of the Affordable Care Act. Although there might be some ambiguity, all of these verbs seem to me to call for changes in formal legal status: a requirement that is "waive[d]" is not legally binding; a requirement that is "defer[red]" is not formally in effect; where an "exemption" is "grant[ed]" the person receiving the exemption is no longer covered by the law; when a requirement's implementation is "delay[ed]" it does not take effect. These actions are all directed at the content of legal obligations, not just the consequences of violating legal obligations. As a result, they do not come within the power of prosecutorial discretion.
As with Obama's immigration policy, Trump's health care policy might rest on statutory authority -- that is, the statute might allow him to waive, defer, grant exemptions and delay implementation. That is a separate question, not properly understood as a question of prosecutorial discretion or constitutional executive power.
CLARIFICATION: In my prior post, I wrote -- perhaps imprecisely -- that "during the Obama administration there was plenty of talk that the President's non-enforcement discretion allows basically unlimited nonenforcement." [Ed.: note annoyingly inconsistent use/non-use of hyphens]. A reader objected to the implication that the Obama administration itself claimed basically unlimited nonenforcement power from the Constitution. I did not intend that implication: I should have said, instead "while Obama was President" people made this claim. In defending the immigration policy (and, so far as I recall, nonenforcement of parts of the health care law) the administration relied on statutory authority, not on constitutional nonenforcement discretion, and did not claim it was basically unlimited. (The same goes for the administration's most sophisticated academic defenders, see for example here and here). However, it is surely true that some commentators during that time claimed what amounted to effectively unlimited nonenforcment discretion for the President (see authorities cited in this post). That was what I had in mind.