Submitted to a Candid World

Frequent readers will recall with some ire the “conscience regulation” considered earlier this fall by Bush’s outgoing Department of Health & Human Services, which entered into force yesterday: for those just joining us, the regulation will give protection to those doctors in federally funded clinics who enter the field of medicine, only to find that patients may ask them to do their job by providing honest, unbiased advice about the availability of birth control or abortions. We here consider it Bush’s Parthian shot as he rides off into the sunset, a way of subordinating the health and well being of American women to his subjective moral objections, just one last time (read further objections here).

Fortunately, the regulation promises to have little long-term effect: in just over a month, Barack Obama will take the White House from America’s latter-day Nero, and install Tom Daschle as the successor to Mike Leavitt. While not 100% pro-choice, Daschle’s support for abortion rights is well-chronicled by the opposition, and lest we forget, Obama’s other cabinet picks include the “conscience regulation’s” chief opponent, a bright and forceful politician named Hillary Clinton. Maybe you’ve heard of her. Obama could roll up this ill-though out, ill-fated shot across liberty’s bow in less than a month.

But should he? There’s an argument to be made for keeping it in place. For now. Albeit slightly modified.

It bears remembering, after all, that Obama’s day-one agenda is monumental. As soon as he takes office, he’s promised to lift Bush’s executive order limiting stem cell research, and pure practicality dictates that he’ll have to have a regulatory framework for the war on terror ready to implement almost as soon. These big moves will cost a lot of political capital, and repealing the conscience regulation on day one would be a another expenditure of the same. More importantly, it could be a cost he doesn’t have to pay. The “conscience regulation” isn’t self-executing – it simply promises retribution, in the form of sanctions, lost funding, and possibly legal action against centers that fire doctors who refuse to do their jobs. But who says that Obama has to follow through with that promise?

You see, the conservative movement’s pet theory on the presidency (the “unitary executive”) vests absolute authority in the president to make any administrative decisions he wishes, even and especially if those decisions involve the non-enforcement of extant federal law. No less a luminary than Antonin Scalia has taken to defending the President’s ability to refuse to enforce the law, terming it a benefit of the federal system. Unpopular regulations ought to go unenforced, he says – after, all, “yesterday’s herald is tomorrow’s bore” – and further, Scalia argues, no judicial remedies should lie for an individual injured by executive non-enforcement. ((Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 897 (1983).))

Let’s take Scalia at his word. Rather than repeal the conscience regulation, Obama can just refuse to enforce it. Doctors fired for not performing abortions can knock at the administration’s door, demanding relief under the conscience regulation, and Obama can exercise his discretion to turn them away; from there, they can sue in federal court to enforce their rights, where Justice Scalia can tersely inform them that non-enforcement is a presidential power, not a violation of a duty, no matter what the Constitution says. ((Plain textual analysis suggests Scalia’s wrong. But that’s never stopped him. See U.S. Const, Art. II, § 3 (“[The President] shall take care that the laws be faithfully executed.”).)) Why kill your enemies yourself, after all, when you can count on them to fall on their own sword?

Of course, this might not work: Scalia may not let himself be tricked into following his pet theory to its logical conclusion, and even if he is, the rest of the Court might not be convinced. But so what? Worst case, Obama just repeals the regulation anyways, and we get a few laughs along the way.