Tag archives: Executive Action

Presidential Order Recognizes All Newborn Life is Precious

by Connor Semelsberger, MPP , Ruth Moreno

September 30, 2020

On September 25, President Trump signed an Executive Order (EO) that reinforces existing protections for children born premature, with disabilities, or in medical distress, including infants who survive abortion. The Executive Order on Protecting Vulnerable Newborn and Infant Children responds to credible concerns that some hospitals have refused to provide medical screening and stabilizing treatment to such children because “they believe[d] these infants may not survive, may have to live with long-term disabilities, or may have a quality-of-life deemed to be inadequate.” However, such refusals violate multiple federal laws, as the EO explains.

An EO is not a new law. Rather, it is a directive from the president instructing the executive branch on how to enforce existing law. This particular EO is primarily concerned with ensuring the Department of Health and Human Services (HHS) properly enforces three existing laws:

Specifically, HHS must ensure:

  • all federal funding recipients understand their obligations toward vulnerable children;
  • all federal funding recipients provide medical screening examinations, stabilizing treatments, or transfers when needed;
  • all federal funding recipients provide these services to all children, regardless of disability;
  • violation complaints regarding medical care for newborns and infants are investigated;
  • disability discrimination complaints can be filed on the HHS website; and
  • research into treatments for infants born with emergency medical conditions and programs that train medical personnel to care for said infants are prioritized.

This EO clarifies medical protocols for infants born with disabilities or who survive abortion. However, the executive branch is limited to enforcing the laws that already exist. A legislative fix is necessary to provide true legal protections for infants who survive abortion. Since 2006, five states have reported at least 179 cases in which an infant has survived an abortion. Because not all states report this data, the 179 cases we do know about do not even begin to paint the full picture of the number of abortion survivors in the United States. The Born-Alive Abortion Survivors Protection Act is a bill before Congress that would legally require medical professionals to give the same level of care to infants that survive abortion as they would to any infant born at the same gestational age, and include criminal and civil penalties for any physician that fails to give appropriate care to these infants.

Unfortunately, pro-abortion politicians have fallen victim to the abortion industry’s lies. They have halted every effort in Congress to denounce infanticide and provide full legal and medical protection for these innocent babies. Vice-presidential candidate Sen. Kamala Harris (D-Calif.) voted against this life-saving measure twice, and Speaker of the House Nancy Pelosi (D-Calif.) has continuously blocked Republican efforts to have a House floor vote on the bill.

Congress has neglected its duty to ensure that the right to life is secured for all individuals born in America. President Trump has stepped in to fill the void left by Congress’ inaction by issuing this Executive Order, demonstrating this administration’s willingness to do what is necessary to protect the unborn, the disabled, and every infant who has survived the horror of abortion.

Connor Semelsberger, MPP is the Legislative Assistant at Family Research Council.

Ruth Moreno is a Policy and Government Affairs intern focusing on federal legislative affairs, with a concentration on pro-life issues.

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
  • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
  • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter … Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

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