Does the Obama Administration Have the Authority to Delay Obamacare’s Employer Mandate?

credit: Talk Radio News Service / Foter / CC BY-NC-SAcredit: Talk Radio News Service / Foter / CC BY-NC-SALast week the Obama administration unexpectedly announced that it would delay the implementation of Obamacare’s employer mandate, which requires businesses with 50 or more employees to provide qualifying health coverage or pay a per-worker penalty. Whether or not this is good policy—virtually everyone agrees that the employer mandate is poorly designed—there’s real question about whether the move is legal.

There is even some Democratic skepticism about whether the administration’s move is justified. “This was the law. How can they change the law?” asked Tom Harkin (D-Iowa), an author of the health law and the top Democrat on the Senate Health, Education, Labor and Pension Committee, according to The New York Times.

In response to questions about the legality of the delay, White House Press Secretary Jay Carney declared flatly this afternoon that “the ability to postpone the deadline is clear,” and that delay is “not an unusual process.” Carney called Harkin’s questioning “willfully ignorant.”

Writing in The Wall Street Journal, former Tenth Circuit Appeals Court judge Michael McConnell begs to disagree. Noting that according to a 1990 memo by the Justice Department’s Office of Legal Counsel, the president “does not have the right to refuse to enforce a statute he opposes for policy reasons,” McConnell writes that the health law has no provision allowing the administration to suspend the employer mandate. He points to Section 1513(d) of the law, which governs the employer mandate provisions, and states clearly that “the amendments made by this section shall apply to months beginning after December 31, 2013.”

The Cato Institute’s Michael Cannon offers further analysis to this effect. Although the law gives the Health and Human Services Secretary the authority to determine when to collect the penalties that result from the employer mandate, he writes, it does not provide the authority to waive the penalty entirely. There is a provision allowing the Treasury Department (which is officially responsible for the delay) to waive the penalty on a state-specific basis if a state can show that it has enacted an alternate but equally expansive coverage scheme that does not add to the federal cost, which is clearly not the case here. But even if it was, the provision does not allow this waiver to go into effect until 2017.

Nor does the law give Treasury the authority to delay the law’s employer reporting requirements. Treasury’s announcement last week cited the delay of these requirements as the reason for the mandate’s delay, noting that without the reporting requirements to indicate which employers offered qualifying coverage, it would be “impractical” to determine which employers had to pay the penalty. As Cannon notes, the law does give Secretary the authority to decide when to collect that information—but not the authority to delay collecting it until the next calendar year. The law states that the reporting requirements are effective in “calendar years beginning after 2013," and begin in the months "after December 31, 2013." That pretty clearly seems to include 2014. 

All of which makes Carney’s assertion that the delay authority is “clear” more than a little dubious. The clearest reading is in fact that the administration does not have the authority to delay the employer mandate. And despite Carney’s insistence that the move is obviously legal, the administration does not seem prepared to defend the decision at length from critics. The House scheduled a hearing on the delay for today. The White House, however, declined to send a representative to make its case.

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  • Metazoan||

    So, lawyers, can anyone actually take this to court? I mean, does anyone have standing?

  • some guy||

    Could Congress take them to Federal court, or would it have to go the impeachment route?

  • db||

    Now that would be irony.

  • some guy||

    Congress impeaches Obama for not implementing his own signature legislation? It would be the perfect climax to what has been a truly dreadful administration.

  • Peter Suderman||

    Not entirely clear, but I have not seen anyone make a strong case that someone has standing to challenge this.

  • Night Elf Mohawk||

    If no one has standing, perhaps the current definition of standing is fatally flawed.

  • SweatingGin||

    The courts will not protect the people from the consequences of their electoral choices?

  • Night Elf Mohawk||

    They do that every time they rule something unconstitutional, so that's not a particularly persuasive reason for refusing to make a decision.

  • Loki||

    Serious question (though it may come off as snarky): When was the last time they ruled an act of Congress unconstitutional?

    Heller and Lawrence v. Texas were rulings against the DC hand gun ban and the TX sodomy ban, respectively, but those weren't Federal laws passed by Congress. So what was the last Federal law to be ruled unconstitutional?

  • Agammamon||

    There was something about the EPA saying that its rulings couldn't be challenged until *after* a defendant paid the fine - SC struck that down as unconstitutional.

    Not a federal *law* per se, but a federal agency making regulation with the force of law.

  • Loki||

    And at the end of the thread, Bryan C refers to the Line Item Veto Act of 1996. The SCOTUS did rule that unconstitutional. I can't think of any more recent examples though.

  • Adam330||

    Part of the Voting Rights Act just this term (Selby County case) is a very recent one.

  • CatoTheElder||

    The recent voting rights decision struck Section 4(b) only because it is no longer constitutional under current circumstances. The Court did not rule that Section 4(b) was unconstitutional in all situations.

  • CatoTheElder||

    http://en.wikipedia.org/wiki/U.....s_v._Lopez ruled that Commerce Clause did not authorize the Gun-Free School Zones Act of 1990 (the "Act"), 18 U.S.C. § 922(q).

    http://en.wikipedia.org/wiki/U......_Morrison ruled that Commerce Clause did not authorize parts of the Violence Against Women Act of 1994.

    However, the USSC has more recently ruled that the Commerce Clause does authorize the prohibition of the cultivation of a plant that is prohibited to enter either intrastate or interstate commerce even if it is intended exclusively for personal use.

  • Auric Demonocles||

    I'm pretty sure we've already seen that that is the case.

  • Emmerson Biggins||

    ya. This law effects 16% of GDP. And effects basically everybody in the whole country. But nobody has standing.

  • Agammamon||

    That's because it doesn't affect more than 80% of your income.

    As long as the government only controls 80% of you then you're still considered 'free'.

  • Adam330||

    The administration is now apparently trying to use the delay in court to head off the lawsuits challenging the mandate. The plaintiffs there will likely argue that the government is going to enforce the mandate in 2015 anyway and win on that argument. But they could also argue that despite the administration's statements, it has no authority to waive the imposition of the penalties in 2014. That would give a court the chance to agree with that argument in an opinion.

    http://www.cato.org/blog/obama.....challenges

  • CatoTheElder||

    An employer that has already managed its affairs to be in compliance is, in fact, competitively disadvantaged by the President's refusal to enforce the law on its competitors.

    As much as I enjoy the prospect of Obama-supporting employers suffering economic disadvantage for a change, it seems employers already in compliance would have standing.

  • ant1sthenes||

    Maybe it's time to convince SCOTUS that every single citizen of the U.S. has standing to challenge an action that is a threat not against the rights of a specific individual, but the Constitution and the Republic itself.

  • SweatingGin||

    Not a lawyer, but I'd bet that you couldn't challenge it until January 1, if you had an employer who would fall under it. Even then, seems questionable.

    Cato notes that they are trying to block legal challenges to it.

  • Fluffy||

    Wouldn't any person who is employed at a qualifying employer who has no insurance have standing?

    The law establishes a right. (Sorry, it's obscene to use that word here, but that's what it does.)

    There are persons whose rights under this law are not going to be enforced, just because Obama doesn't feel like it.

    How can they not have standing?

  • Metazoan||

    Good call. I mean, I certainly hope that someone has standing to force implementation of this disaster. (After all, how else will we find out what is in it?) I was just curious (and pessimistic).

  • John||

    That is how I look at it. Look at it this way, environmental groups who claim to want to hike in a forest have standing to challenge a decision to allow logging. The EPA is routinely sued for not enforcing environmental laws in a manner satisfactory to various environmental groups. I don't see how someone who has a full time job and no insurance doesn't have standing here.

  • VG Zaytsev||

    CWA and other environmental laws specifically give 'interested parties' that have not actually suffered harm standing to sue in federal courts.

    It's a little known part of the enviro-regulatory scam.

  • ||

    I would think that any employer who would have been affected can similarly claim standing as they had already prepared to implement it.

  • SweatingGin||

    If they're smart, though, they should implement it anyway. If Obama can unilaterally delay it for a year, hard to see a reason he can't change his mind in mid-January and start going after people. I suppose the day after the election would be more likely.

    "I didn't say Simon Says. Send them to the camps."

  • ||

    Well, yes, that's what I would have my lawyers argue. If the Administration can unilaterally decide the timing of enforcement, they can make it January 2, 2014 on January 1, 2014 and I'm non-compliant despite my best efforts to comply legally.

  • ||

    There are persons whose rights under this law are not going to be enforced, just because Obama doesn't feel like it.

    Oh he feels like it. But he knows he's incapable of doing it. So his course of action is to be the beneficent daddy who's giving YOU a break, rather than admit he's incompetent. Basically, it's business as usual.

  • Fluffy||

    FYTW

  • some guy||

    “This was the law. How can they change the law?”

    Can we put that on the Constitution's tombstone?

  • Auric Demonocles||

    The answer to that question is pretty simple:

    Make an Amendment. It's been done dozens of times.

  • some guy||

    And yet the interpretation of the law is so very different than it was 200 years ago. Much more different than a few dozen amendments can account for.

  • SweatingGin||

    If Obama can make recess appointments when the Senate is not in recess, of course He can unilaterally, temporarily repeal a law.

    People trying to hold Him to the law are just racists.

  • ||

    So who will play Ceasar, asked by the Senate to cross the Potomac and restore the Repbulic?

  • Lord Humungus||

    Warty?

  • ||

    May The Lord have mercy on all of our souls should that come to pass.

  • jester||

    He's epileptic? And a poor swimmer?

  • some guy||

    He's the hero we deserve, and the hero we need right now.

  • ||

    Warty Hugeman serves no one other than his libido, across all times and places. Don't look to him, especially because he might rape you.

  • ||

    But you don't want to look away either. Otherwise, SURPRISE BUTT SECKS!!

  • db||

    The word "surprise" hardly applies to such an obvious lurking rape-machine.

  • ||

    Well, I mean, I thought I was getting flowers!

  • some guy||

    Exactly. He's the hero we deserve.

  • Red Rocks Rockin||

    The Caesar analogy is more apt than I think people realize.

    Caesar never would have gained the power and influence he did had the Senate not been a cesspit of corruption to begin with. People forget that Caesar was a populist who endeared himself to Rome's underclass and used the power of the mob to strengthen his position.

  • ||

    Fuck you Carney, the President most certainly does not have that power. Christ on a cracker.

  • ||

    Jay Carney: huge piece of shit, or the hugest piece of shit?

  • some guy||

    So large our grandchildren won't believe us when we describe him. They'll claim all the photos and video were edited.

  • ||

    He has to be at least 8 Kourics.

  • ||

    You forgot his title: Squealor Jay Carney. Worst Squealor of the 21st Century.

  • Rasilio||

    He is a POS for certain, but in Washington he's not even in the top 100

  • jester||

    Why do huge pieces of shit curl? Do you think he achieves 360 degrees or even better? Or is he just a sloppy steaming pile, watery and so more like an oatmeal cookie?

  • Loki||

    Why do huge pieces of shit curl?

    If I had to guess, I'd guess the Coreolis Effect. Do huge pieces of shit curl counter-clockwise in the northern hemisphere and clockwise in the southern? If so, there's your answer.

  • jester||

    Can anyone in the Southern Hemisphere take a huge dump and report back?

  • some guy||

    OT: New theory on GZ prosecutor's intentions.

    He's actually on GZ's side. He thinks this was straight up self defense but he was worried that if it never went to trial there would be riots and he'd be lynched. So, he takes it to trial, but he spends the whole time helping GZ's case. He makes sure all the evidence gets out there so that it is obvious GZ was acting in self defense. He hopes this will avert any violence. If he pulls it off he's a hero. If the riots still happen, at least he won't get lynched. For him, it was the only option, really.

  • DontShootMe||

    The daily GZ thread is over there someplace...

  • some guy||

    I just had a thought and wanted a forum. The last GZ thread is like 3 hours old and I don't feel like waiting for the next one.

  • Paul.||

    “This was the law. How can they change the law?” asked Tom Harkin (D-Iowa),

    I guess Tom Harkin doesn't have a lot of experience working with this administration.

  • Paul.||

    Oh, and for old times sake:

    Are you serious? Are you serious?

    You know, 'cause it kind of applies here.

  • jester||

    The problem is that Obama is FOR the mandate. It's just that it is unimplementable. Probably always will be. Harkin is willfully ignorant. Unfortunately, William Shatner won't be available to point out Obama's illogic and cause him to implode. I can't blame Obama for wanting to delay. Maybe, this is the start of a good thing.

  • db||

    At this point the best way to limit the President's power is to pass a law granting him unlimited power. The Administration will fuck it up so bad they'll end up with less influence than they had before.

  • ||

    Unfortunately, the fuckups would not be evenly distributed, and with my luck, they'd get my internment right, but send the food somewhere else.

  • Rich||

    a law granting [the President] unlimited power.

    That is an awesome idea.

    "I DOUBLE-DOG dare my congresscreature to propose such a bill!"

  • VG Zaytsev||

    pass a law granting him unlimited power.

    Maybe they could call it an act to enable the president to secure peace and prosperity for all Americans.

  • Auric Demonocles||

    I await Carney's eager defense of the next Republican president indefinitely delaying the law.

  • John||

    Or better yet deciding other laws need no longer be enforced. Why couldn't a Republican President decide that the clean water act will no longer be enforced?

  • Auric Demonocles||

    We haven't seen that he can decide it's no longer enforced... But he can decide to delay it's enforcement for the length of his term.

  • John||

    That is a distinction without difference. The law says as of whatever date the mandate is in effect. After that date, Obamacare is just as effective a law as the CWA. And ignoring either just as lawless.

  • Night Elf Mohawk||

    If he gets away with this, do people start campaigning on what laws they will stop enforcing?

  • ||

    Is it the Mann Act that prohibits transportation across state lines for the purposes of prostitution? I'm campaigning on that one.

  • John||

    They should. But you know that the media would throw such a fit it would be difficult for a Republican to do this.

    That said, however, given this precedent, I don't see any reason why Obama couldn't decide not to enforce other laws.

  • Bryan C||

    Which is yet another horrible thing about this sort of action. Our system of laws isn't structured around the term of any particular President, and it's not within the power of any President to change that. The day the new President takes office has absolutely nothing to do with what laws we're living under. There's no magical process whereby "President Barack Obama law" switches out and "President Scott Walker law" begins.

  • Loki||

    In response to questions about the legality of the delay, White House Press Secretary Jay Carney declared flatly this afternoon that “the ability to postpone the deadline is clear,” and that delay is “not an unusual process.” Carney called Harkin’s questioning “willfully ignorant.” WE ARE ABOVE ZE LAW!
  • Loki||

    The House scheduled a hearing on the delay for today. The White House, however, declined to send a representative to make its case.

    "Fuck you, that's why."

  • Bryan C||

    I thought this sort of thing was already settled back when the Supreme Court struck down the Line Item Veto act of 1996. They ruled that the Constitution expressly prohibites the President from picking and choosing parts of legislation he intends to enforce:

    "If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may "become a law" pursuant to Article I"

    http://caselaw.lp.findlaw.com/.....ol=97-1374

    The Clinton administration argued there was no possible standing in that case, also. The Court rejected those arguments.

  • CatoTheElder||

    Shorter Carney: "La Loi, c'est Obama."

  • Gozer the Gozerian||

    "Après ACA, le déluge"?

  • VG Zaytsev||

    Is it time to admit that our system of government is an elected fascist dictatorship?

    BTW did anyone see that the justice department was funding the racist protests against Zimmerman last year?

  • Bert Loftman||

    Reason blew it on this one. They seem to be advocating that delaying a mandate for job-medical care is a bad thing bit it is job-based medical care is the bad things. It causes workers to lose medical care when they change jobs and this causes untold problems. If Reason is a “libertarian” organization, it should applaud Obama’s decision to delay parts of ObamaCare. This leaves it open to individually owned medical insurance policies. If people have these, they should make sure they are catastrophic and non cancelable. When they have this, they have free-market medical care. For further information please go to: http://www.electtherightcandid.....ical_Care/ .

  • ant1sthenes||

    Dumbass. They are advocating that the President picking and choosing which laws he will enforce is bad for our claim to be a constitutional liberal democratic republic, not that this particular law has merit. Principles, not principals.

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