Delaying Parts of Obamacare: 'Blatantly Illegal' or Routine Adjustment?

The GOP says Obama's decision to postpone implementing the "employer mandate" stomps all over the Constitution. It doesn't, and here's why.
scott garrett.jpg
House Republican Scott Garrett contends that postponing the employer mandate violates section 3 of article II of the Constitution. (Joshua Roberts/Reuters)

When, on July 2, the Obama Administration announced a one-year postponement of the January 1, 2014 effective date for the Affordable Care Act's requirement that large employers provide their workers health insurance or pay a tax, affected businesses "cheered." But anti-"Obamacare" advocates and politicians howled. They saw a "blatantly illegal move" (Brietbart.com pundit Ken Klukowski), a government acting "as though it were not bound by law" (CATO Institute economist Michael Cannon), and an unconstitutional "refus[al] to enforce" a democratically enacted law (Congressional Joint Resolution #45, introduced July 10 by New Jersey House Republican Scott Garrett). In the Wall Street Journal, Stanford Professor Michael McConnell, formerly a George W. Bush appointee to the federal bench, huffed that the decision "raises grave concerns about [President Obama's] understanding" that, unlike medieval British monarchs, American presidents have, under Article II, Section 3 of our Constitution, a "duty, not a discretionary power" to "take Care that the Laws be faithfully executed." Following up in the Journal this Monday, David Rivkin and Lee Casey, who helped lawyer last year's legal challenge to the ACA individual mandate, darkly intimated that the new employer mandate delay could trigger litigation that could result in "the whole statute fall[ing] while the president's suspension is in effect."

So has President Obama, in fact, broken the law and abused his constitutional authority by delaying the Affordable Care Act's "employer mandate"? This may be the top Republican talking point right now. But what does the law actually say about this?

Mostly, the heated rhetoric of the past few weeks ignores what the Administration has actually decided and how it has delimited the scope and purpose of that decision. The Treasury Department's announcement provides for one year of "transition relief," to continue working through 2014 with "employers, insurers, and other reporting entities" to revise and engage in "real-world testing" of the reporting requirements, simplify forms, coordinate requisite public and private sector information technology arrangements, and engineer a "smoother transition to full implementation in 2015." The announcement describes the postponed requirements as "ACA mandatory" -- i.e., not discretionary or subject to indefinite waiver. On July 9, Assistant Treasury Secretary Mark Mazur added, in a letter to House Energy and Commerce Committee Chair Fred Upton, that the Department expects to publish proposed rules implementing the relevant provisions "this summer, after a dialogue with stakeholders." In effect, the Administration explains the delay as a sensible adjustment to phase-in enforcement, not a refusal to enforce

In Sunday's Washington Post, Bush II Health & Human Services Secretary Michael O. Leavitt concurred that "The [Obama] Administration's decision to delay the employer mandate was wise," in light of the Bush Administration's initially bumpy but ultimately successful phase-in of the 2004 prescription drug benefit to Medicare. Though "wise," is the current postponement "illegal"? On the contrary, Treasury's Mazur wrote to Chair Upton, such temporary postponements of tax reporting and payment requirements are routine, citing numerous examples of such postponements by Republican and Democratic administrations when statutory deadlines proved unworkable.

Presented by

Simon Lazarus is Senior Counsel at the Constitutional Accountability Center, and previously served as Associate Director of the Carter White House Domestic Policy Staff.

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