Wouldn’t it be nice if, by some act of magic, a law that endangers unborn children could be transformed into a life-affirming statute? Unfortunately, such magic does not exist; in fact, not even an order written by the President can modify language passed by Congress and signed by the President.
In an email written by then-Justice Department employee and well-known Harvard Law Professor Laurence Tribe, to then-Solicitor General (now Supreme Court Justice) Elena Kagan on the day that the Affordable Care Act passed the House of Representatives, Tribe gushed “[s]o health care is basically done! Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”
The “signing statement on steroids” that Tribe refers to is President Obama’s Executive Order 13535, characterized by the White House as “reaffirm[ing] [the Affordable Care Act’s] consistency with longstanding restrictions on the use of federal funds for abortion.” However, as Tribe clearly recognized, the EO did not “reaffirm” existing law, and certainly did not “cure” the major abortion-funding flaw in the ACA—the absence of a comprehensive prohibition on the use of federal funds for abortions and abortion coverage. In fact, the EO would more accurately be described as “smoke and mirrors” rather than “magic.”
Even if Executive Order 13535 had been written with the intent to cure the problems with the Affordable Care Act (it was not – see AUL’s analysis), when a statute directly conflicts with an executive order, the statute wins. The Affordable Care Act is not consistent with longstanding restrictions on federal funding for abortions and abortion coverage; therefore, any executive order intended to make the law consistent would be ineffective.
Mr. Tribe’s email confirms what we already knew—the Obama administration knew exactly what they were doing when they struck a “deal” with pro-life democrats in Congress.
 Posting of Dan Pfeiffer to The White House Blog, http://www.whitehouse.gov/blog/2010/03/21/one-more-step-towards-health-insurance-reform (March 21, 2010, 16:16 EST)