Obama Isn't Too Worried That Delaying the Employer Mandate Is Illegal

Asked whether he consulted a lawyer before the Treasury Department postponed a rule, he says he's not worried about Congressional critics.
Kevin Lamarque/Reuters

Part of what makes a seasoned politician successful is the ability to talk for a long time and say nothing. You can usually assume that anyone who makes it as far as the White House will be especially adept, and President Obama displayed that talent in an interview with the New York Times last week, a transcript of which the paper posted over the weekend. Complain about House Republicans? Check. Disavow the sequester? Check. Name-drop a Harvard professor? Check. Refuse to divulge anything about his plans for Keystone XL or the next Fed chair? Check and check.

But wait! Here's one interesting passage. Remember that at the beginning of July, the administration announced it would postpone a rule that employers must offer insurance to employees who meet certain conditions. The move was in response to complains from companies that the reporting process was too onerous. Republicans in Congress are just as happy to see the mandate removed, if temporarily, but smelling blood in the water, they've challenged the administration's authority to issue the delay, arguing further that the unworkability of the employer mandate is a good reason to junk the individual mandate and really the whole law.

NYT: People questioned your legal and constitutional authority to do that unilaterally -- to delay the employer mandate. Did you consult with your lawyer?

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security --

NYT: No, but specifically –

MR. OBAMA: -- but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don't think that's a secret. But ultimately, I’m not concerned about their opinions -- very few of them, by the way, are lawyers, much less constitutional lawyers. I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. 

This is actually a great example of just how good Obama is at sidestepping a question, even when he's asked twice point-blank. But it's a little surprising that even as constitutional lawyer Obama mocks his detractors -- hey, they're not qualified to judge, like me! -- politician Obama doesn't even bother trying to justify the constitutionality of his actions. (Press Secretary Jay Carney, in contrast, has done so.)

Obama is clearly right that some opponents will challenge his legitimacy on whatever grounds are available, and he shows little interest in engaging with those concerns. But they're not just coming from Republicans singlemindedly devoted to futile votes to repeal Obamacare. They're coming from Democrats, too, like Senator Ron Wyden, who complain about what they see as efforts to circumvent Congress or keep them in the dark on key issues like the drone war and NSA surveillance. Speaking of the NSA, the Times didn't ask him about it.

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David A. Graham is a staff writer at The Atlantic, where he covers political and global news. He previously reported for Newsweek, The Wall Street Journal, and The National.

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