Does Obama Have the Lawful Power to Keep Delaying Obamacare?

Credit: White House / Flickr.comCredit: White House / Flickr.comAs Peter Suderman noted this morning, President Barack Obama has once again delayed implementation of the Patient Protection and Affordable Care Act’s mandate requiring businesses that employ more than 50 workers to provide qualifying health insurance to their employees. This unilateral executive action raises all sorts of questions, but underlying them all is a basic matter of law: Does the president posses the legitimate authority to keep kicking this can down the road?

There’s some reason to think he does not. As University of Michigan law professor Nicholas Bagley argued back in July when the president announced his first implementation delay of the employer mandate:

In a letter and in congressional testimony, the administration has invoked a general statutory provision authorizing the IRS to “prescribe all needful rules and regulations” for enforcing the tax code. That rulemaking power, in the administration’s view, allows it to delay the effective dates of tax statutes in narrow circumstances.

But is that right? For support, the administration points to a practice dating back to at least 2000 of providing “transition relief” for new tax legislation “when [its] immediate application would have subjected taxpayers to unreasonable administrative burdens or costs.”...

In pointing to past practice, administration officials are tacitly arguing that it may act consistently with that practice until either Congress or the courts say otherwise. This is the kind of argument the executive branch makes all the time. As the administration sees it, the IRS has been saying, “Hey, Congress, we think you’ve given us the power to temporarily delay tax statutes where implementing them is really hard. Let us know if we’re wrong.” In declining to clip the IRS’s wings, Congress has acceded to that view. (My kids make this kind of argument all the time. When I tell my son to stop jumping on the couch, he’s apt to say that he’s jumped on it before. For him, my earlier failure to tell him to stop means that there’s no rule against jumping on the couch.)

Here’s another way to think about whether Obama has the discretion to keep departing from the letter of the law. As Georgetown law professor Randy Barnett put it, “tell me again why a future Republican administration can't just waive Obamacare."

Update: At the Volokh Conspiracy, Case Western Reserve law professor Jonathan Adler pulls no punches:

Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions “shall apply” after December 31, 2013. The Treasury Department claims that it has broad authority to offer “transition relief” in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule. So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit.

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  • ||

    Does the president posses the legitimate authority to keep kicking this can down the road?

    A better question is: what is Congress going to do about it?

    Answer: nothing.

  • Homple||

    What is Congress going to do about it?

    Perhaps pass an Ermächtigungsgesetz and go home to spend more time with their families?

  • Swiss Servator, Befehl!||

    Can we at least get a Reichstag Capitol Hill fire out of it?

  • Brett L||

    As long as they are all inside and there are no kids tours going through. Lobbyists, interns and staff... I hope they get out but

  • Scarecrow Repair||

    Hell, that's been in there since 1787 -- Contract clause, Commerce clause, Necessary and Proper clause, any of them or many others.

  • AlexInCT||

    I think congress long ago gave up their rseponsibilities, but the LSM not calling him on this shit doesn't help either. At this point I am convinced that the only way to have the press do its job is to make them hostile by putting someone with an (R) next to theri name in the WH. Then they are willing to make up shit to make that person look bad.

  • ||

    Much like the Roman Senate, Congress is setting itself up to be a sort of vestigal rubber stamp on the powers of the executive.

    We've got the bread and circuses, and we've got the imperial presidency, so we might as well go full roman.

  • Paul.||

    Et Tu, Biden?

  • fish||

    IIRC Court Jesters weren't a feature of Roman governance.....?

  • sasob||

    Lol. Nice one!

  • Brett L||

    Well, I think that answer changes now that the Dems have revoked cloture for their hobby-horses if the GOP wins the Senate AND throws Boehner from the Speakership. So, when the unicorns come to take us to Libertopia, then Congress will do something.

  • Paul.||

    A better question is: what is Congress going to do about it?

    Rooster: Who said you wuz in charge?

    Trumpy: Who's gonna tell me I'm not?

  • gimmeasammich||

    Do you know what the chain of command is?

  • XM||

    What's funny is that ACA supporters insisted that concerns over the employer mandate is overblown, because not that many (small) businesses hire 50 or more people. And this delay involves businesses that employ around 100 people.

    At a certain point, people who made the effort to meet the previous deadline will feel cheated. Maybe you squeezed every dime out of your bank account to pay for your employers' healthcare, but your competitor who waited until the last minute is essentially rewarded with a two year reprieve.

    Can you tell your workers "I'm going to cancel your healthcare now and reinstate it two years later when I have to"?

  • The Late P Brooks||

    He's the President, duh.

    MANDATE!

  • AlexInCT||

    Do you mean 2 guys going out on a date/ Cause I hear Obama did that too....

  • Killaz||

    I hear his particular golf playing association is more like the 'choom gang than a man on man thing. Its reported as the later because Michelle is okay with that, but if he is drinking, smoking and watching porn with buddies, he would be in some deep shit.

  • Killaz||

    The Down Low is just cover for being a Dude!

  • AlexInCT||

    The first Wookee would rip his arms off and beat him to death with them if she pissed her off...

  • John||

    Randy Barnett put it, “tell me again why a future Republican administration can't just waive Obamacare."

    If only we could ever get a Republican President with that kind of courage. If you think what Obama is doing here is legal, then a future President could just declare his intention to no longer enforce or operate the law in any way. Progressives would have a fit and engage in all kinds of spiting and rage and double speak about how that is totally different than what Obama did (multiple times involving a lot more than just Obamacare) but they would have to either admit Obama was a lawless President or that the the Republican is acting within his power.

  • Swiss Servator, Befehl!||

    “tell me again why a future Republican administration can't just waive Obamacare."

    BECAUSE SETTLED LAW OF THE LAND! TREASON!

  • John Thacker||

    If only we could ever get a Republican President with that kind of courage.

    NewsAlert: Crazy Republican commenter wishes for the return of Nixon. (One word: impoundment.)

  • John||

    In fairness. Impoundment was legal and widely used by Presidents long before Nixon. It only became illegal after the 1974 Budget Control Act.

  • OneOut||

    "If only we could ever get a Republican President with that kind of courage. If you think what Obama is doing here is legal, then a future President could just declare his intention to no longer enforce or operate the law in any way. Progressives would have a fit and engage in all kinds of spiting and rage and double speak about how that is totally different than what Obama did (multiple times involving a lot more than just Obamacare) but they would have to either admit Obama was a lawless President or that the the Republican is acting within his power."

    And in the meanwhile ? If I need to go to the Doctor and I have a serious problem ?

    I'm fucked ?

  • OneOut||

    They would never admit shit.

    They would do everything you say except admit they were/are wrong.

  • Pro Libertate||

    Okay, if you support this, where's the line between Obama's discretion and the law? As far as I can tell, his supporters say he can pretty much repeal provisions and create them out of thin air. Not an exaggeration.

    Let's also remember that the line-item veto is not a federal power, so the president has one chance to reject a law--in toto--or accept it.

    Obviously, agencies have some discretion to implement the laws that require further regulation, but what they don't have is the authority to rewrite those laws. That goes for the president as well. If that's not clear, then the law itself may be invalid as an improper delegation of power, and there's certainly abundant evidence in this instance to accuse the president of arbitrarily enforcing portions of the law that benefit certain preferred constituents and to provide cover for the upcoming election. Which should and likely will be the basis of legal attacks on the law.

    If our system weren't completely fucked up at this point, Congress would almost unanimously repeal this law, just to save seats. Not that many years ago, it would be a slam dunk. Now, of course, when bullshit rules, it'll take more damage to all of us before people finally react in the voting booth.

  • John||

    And if Obama can do this, I am sure the Prog media would have been totally okay had Romney won and done the same thing.

  • Pro Libertate||

    They think they're just going to do an about face and everyone is going to go along. They're not that influential, not anymore. So when the conservative dictator seizes power, I hope they remember that they handed him the rod, scepter, and fasces.

  • John||

    Yeah. They are so arrogant they thing that either there never will be another Republican President or if there is they can pretend the last 8 years didn't happen and stop him from doing this kind of shit.

    I think they are sadly mistaken, God help us. I don't see how you fix the Republic after this. If you get a Democrat in 2016, they just continue this and more. If you get a Republican and he stops this shit, the Dems just pick up where they left off the next time they get in office. If a Republican gives these people a taste of their own medicine, maybe we get some real consensus to put a stop to both sides doing it. But more likely the Democrats just feel justified to be even more tyrannical when they get in power.

    The problem is you cannot have a Republic where one side never holds its own accountable. And that is what we have right now. The Democrats refuse to hold Obama accountable for anything. So any efforts to stop him can just be played as partisan warfare.

  • The Last American Hero||

    That's why Rand is the best chance this country has. He may be able to ratchet back Leviathan just enough to avoid collapse, and one would hope that his efforts to do so would at least restart a conversation about the proper roles of the executive and the legislative.

  • Brett L||

    "You finally did it. God damn you! God damn you to Hell!"

  • Pro Libertate||

    "Beware the Beast called Rand."

  • DarrenM||

    They are so arrogant they thing that either there never will be another Republican President

    No, they just know that any Republican president will roll over for fear of being called something bad by the media. Republicans never change anything. They just help entrench the new status quo.

  • PapayaSF||

    So will there be a lawsuit?

  • Swiss Servator, Befehl!||

    I suggested such this AM....we'll see.

  • Fluffy||

    The media likes the ACA.

    They believe that Obama is issuing all these exemptions to save the ACA.

    Therefore, they conclude that the delays and exemptions are good.

    If Romney was President and was issuing the exact same set of delays and exemptions, the media would believe he was doing it to gut the ACA.

    They would therefore conclude that the delays and exemptions were bad.

    This is because our modern media does not judge the action, but judges the actor, and then frames all judgments of actions through the prism of their judgment of the actor.

    Stolen from National Review comments.

  • ||

    Stated intentions are all that matters. Actual intentions and results are irrelevant. Part of stated intentions are a person's TEAM affiliation.

  • John||

    It is not even intentions. It is identity. Who you are determines the rightness or the wrongness of your actions.

    If you are from the wrong political class, everything you do is wrong by virtue of you doing it. That is all this shit is and it is nothing new. It is just that the current generation of retards who are practicing it are so stupid they don't even know they are doing it.

  • Pro Libertate||

    You know, this is worse than team sports. Not just because the stakes are higher, but because there are no rules at all. Your team winning--whether it's elections or the debate du jour--is all that matters. All. It's like celebrating your football team's victory when they won by drone murdering the other team.

  • Brett L||

    Calvinball for adults

  • John||

    Don't bother me with your bourgeois logic and law Pro. What matters is the revolutionary truth. If these things you call "law" and "rationality" get in the way of the common good, they they must be ignored.

    At the heart of it, that is what Progs believe. They are just either too mendacious to admit it or stupid to understand that is actually how they are thinking. Either way they clothe it in the language of "law" and rationality but that is not what they are doing.

  • Pro Libertate||

    I remember in law school when a professor talked about the "Critical Legal Studies" movement, which, among other things, involved using any means necessary to undo the inherent social injustice in the bourgeois legal system. It's that kind of thinking that's derailing everything, yet it's not really doing it to their benefit, because when the inevitable collapse comes, we'll be awash in old prejudices and hates all over again. And altogether new ones.

  • John||

    This kind of thinking is like the shadow out of Tolkien. It is totally against any kind of order or rationality and leads to chaos if it ever becomes widespread. But it camouflages itself in the most noble sounding language and intentions. I mean who doesn't want to end injustice? What good is a legal system if it creates injustice?

    For some reason even very smart people are unable to give a proper answer to those questions and are instead lead astray. I don't really know why.

  • Pro Libertate||

    What struck me as odd about that whole business is that the identity-based civil rights they were more concerned about were being advanced within the system. So, obviously, they wanted more than equal rights for minorities.

  • Paul.||

    The bottome line is that "Rights" now have a constituency.

  • John Thacker||

    Sums things up pretty well, I think.

  • Fluffy||

    the administration has invoked a general statutory provision authorizing the IRS to “prescribe all needful rules and regulations” for enforcing the tax code.

    So this means that President Fluffy could waive - excuse me, "delay" - the entirety of the corporate income tax code, as soon as a new guidebook needed to be printed?

    Maybe I've misjudged this power grab.

  • John||

    Or a President John could waive the enforcement of the entire Clean Water and Clean Air acts.

  • paranoid android||

    Careful, guys. He who fights monsters...

  • John||

    I agree. I and I think fluffy were just pointing out where this leads.

  • Fluffy||

    Right, but I would be doing this expecting the Congress to wake up and fight me to stop me.

    But the only way they can do that is to take back the legislative power from the "rulemaking" executive branch agencies to whom they've delegated it.

    Which is what I actually want them to do.

    So when they stop me, I have won.

    And after that, I get the agencies to start making incredibly abusive and malignant administrative law rulings, to force the judiciary to take place the judicial power.

    Again creating a situation where once they stop me, I have won.

  • waffles||

    The surest way to corrupt a youth is to instruct him to hold in higher esteem those who think alike than those who think differently.

    Hmmm...Nietzsche nailed it.

  • The Late P Brooks||

    Let's also remember that the line-item veto is not a federal power, so the president has one chance to reject a law--in toto--or accept it.

    There ain't no Sanity Claus, you crazy Crackertarian.

  • Pro Libertate||

    There certainly isn't. If this country were to be psychoanalyzed, it would be involuntarily committed.

  • Longtorso, Johnny||

    Democrats, Media Slam President Romney Over Health Care Law Changes
    In a move certain to please his conservative supporters and infuriate his critics, President Romney announced this afternoon that his administration would make yet another change to the Patient Protection and Affordable Care Act. In a terse release, posted without fanfare to the Department of Health and Human Services website, officials revealed that the law’s employer mandate would be suspended until 2016 for all businesses that employ between 50 and 99 people.

    The move comes hot on the heels of news that the agency would not be enforcing the provisions in the law that require Americans to buy approved health insurance until after the next election. Now, as then, a simple explanation was forthcoming. “The president won,” a White House aide told National Review Online. “His disdain for the law was ratified by the people. Now he’s going to fundamentally transform it.”

    “This is an utter disgrace,” griped Senator Chuck Schumer (D, N.Y). “This law was passed through Congress, signed by the previous president, and upheld by the Supreme Court.”...

  • ||

    Over at Raw Story Amanda Marcotte had a piece talking about how evil Republicans wanted to keep workers shackled to bad jobs for health insurance and that Obamacare was a godsend for liberating the people.

    There were hundreds of comments of Rawtards parroting the talking points and mocking stupid conservatives and generally acting like Obamacare is the greatest thing in the history of America.

    Then Raw Story posts this story about the mandate delay. Only 28 comments, most of them talking about how wonderful a single-payer system would be and it's not Obama's fault he couldn't give it to us.

  • Certified Public Asskicker||

    This is the "best" comment on that story:

    Obama didn't change this, they clarified rules that were passed by Congress and upheld by The Supremes.

    Reuters is a republican, AKA corporate, mouthpiece.
    Go back and read the ACA, (I swear, and reality inform you with a couple of clicks), that it wasn't mandated in the law.

  • John||

    Yeah Reuters, a leftwing English news service is totally a Republican mouth piece.

  • ||

    The hardcore proggies really are batshit insane. I'm guessing the reason for so little comments isn't any shame or introspection regarding the law itself, but rather the Rawtards simply have gotten their talking points yet.

  • John||

    They have gone insane. Just thank God they don't have the power to kill people yet. There is no doubt in my mind they would if they had the power.

  • AlexInCT||

    They sure wish they did. For the good of us all, of course...

  • Certified Public Asskicker||

    Yeah as I scrolled through I saw that this same person kept commenting with the same stupid.

    I guess it would be like coming to a Reason post and seeing Tulpa talking to himself.

  • The Late P Brooks||

    There certainly isn't. If this country were to be psychoanalyzed, it would be involuntarily committed.

    We have more than ample evidence of the danger this nation poses, both to itself and others.

  • Pro Libertate||

    I recommend. . .a lobotomy.

  • Mark22||

    Seems to me there is excellent cause for a lawsuit: people who should have gotten coverage but haven't due to the delay in the mandate. If ACA is as important as the president says it is, then this causes people to die, right?

  • Pro Libertate||

    No standing! Next case.

  • Brett L||

    Actually, anyone who works for a company with more than 100 workers that doesn't cover all of its 30+ hr/week workers would have standing. I mean, in a world where the courts were a check on executive tyranny.

  • Pro Libertate||

    No standing! Next case. Or, in the alternative, it's a tax! Next case.

  • John||

    What Bret says. If I work for a company that would have been required to provide me health insurance but isn't now thanks to the waiver, I have been harmed by this.

  • Pro Libertate||

    My deductibles doubled, my premiums went up substantially, and my insurer now likes to deny everything that it didn't deny until this past year.

  • Brett L||

    Yes, but since they pinky swore that it wasn't because of the PPACA, you have no standing.

  • Pro Libertate||

    Curses, foiled again!

  • James Taggart||

    But your honor, we're laying down.

  • Cloudbuster||

    "Does Obama Have the Lawful Power to Keep Delaying Obamacare?"

    No!! Next question!

    I hope it's something equally obvious, like "Do bears defecate in the woods?" I'm on a roll, here.

  • Swiss Servator, Befehl!||

    Oh yeah?! What about circus bears?! Or bears at the zoo? Huh, Mr. I hate children libertarian!!!11!

    /prog

  • The Late P Brooks||

    Has Boner sent the Congressional sergeant-at-arms to forcibly bring the President before Congress to face a contempt charge?

    I crack myself up.

  • John||

    Imagine if they ever did impeach him and remove him from office. I bet he wouldn't leave. I bet they would have bring in the secret service and drag him, Michelle and Mao Mao and Shika out of the White House by force.

  • The Late P Brooks||

    Seriously, if as Fluffy suggested, a President announced his intention to unilaterally rewrite the tax code (or simply decline to enforce it), would the Congress simply say, "Aw, APPLESAUCE!" and go on about the important business of declaring a National Argyle Socks Day?

  • John||

    If the Dems and the media backed it, they totally would. That is how Washington works. Unless either both sides in Congress or one side and the media get upset about something, it doesn't matter.

    As long as the Democrats in Congress are willing to support Obama on this, the media is free to portray it as Republicans just being partisan and the low information public will ignore it. At this point, Obama could do anything and it would not be an issue. I can't imagine any set of circumstances or malfeasance that would cause the Dems in Congress or the media to turn on him.

  • Pro Libertate||

    I was curious whether the party might quietly jettison Obama and his baggage to try to save 2014 or whether they'd double-down on stupid. There's still some time, but the latter looks more likely.

  • John||

    That is really our last best hope. The Democrats need to suffer an soul crushing defeat in November such that the remaining Democrats are forced to turn on Obama. That combined with the realization that a Republican really might win in 2016 would cause there to be a bipartisan rejection of Obama's lawlessness.

  • Paul.||

    We're already well past the doubling down on stupid. The way I see it, they're going to have to avoid the quadrupling down on stupid to get out of this mess.

    OF course, remember, doubling down on stupid got Obama a second term.

  • James Taggart||

    What comes after quadruple?

  • Paul.||

    California.

  • ||

    "Does Obama Have the Lawful Power to Keep Delaying Obamacare?"

    Does it really make a difference to him?

  • Brian||

    This is the problem when you sell a law based on the idea that it's going to be awesome for everyone.

  • Pro Libertate||

    Awesome or awful?

  • sasob||

    No - just ahh shit.

  • JD||

    The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions “shall apply” after December 31, 2013.

    "Well, 2016 IS after December 31, 2013."
    -- President MagicWand

  • Notorious G.K.C.||

    But of course they can't give waivers to religious objectors to the HHS mandate! They can't even give a waiver to the nuns who simply didn't fill out the right form!

  • Paul.||

    My political read on this is that the GOP won't try to stop him because they want the delays and are too dumb to realize the implications of allowing the delay? Basically, they're too shortsighted. The Federal Government is a sack of blind men swapping hats for a living.

    Thoughts?

  • Pro Libertate||

    I think they'd love to make an issue of this lawlessness and will to some extent, but they don't want to jinx 2014 by going after the president too hard.

    Whether the economy is weak enough and the future uncertain enough to result in a mass repudiation of the current iteration of the Democrats is the big question. I rather suspect it is, but I rather suspected that in 2012, too. We'll see.

  • John||

    I think it is two things. First, they realize how horrible implementing it would be and are afraid to be seen as the people who sued to cause it. Second, they are totally bullied by fear of the media calling them racist and obstructionists who only want to cause problems that they are content to sit back and do nothing as this disaster unfolds.

    The horrible reaction and resulting fall in approval ratings that happened after the Cruz filibuster and government shut down has left them gun shy. The fact that events have completely vindicated Cruz's position doesn't seem to matter.

  • Pro Libertate||

    I've heard some conservative radio guys go on like they suffered some major defeat when the fucking president shut down the government. But they don't phrase it that way, they blame the Republicans for doing it.

    When you concede the entire narrative to the opposition, including buying into their distortions, you're going to have trouble. From where I'm sitting, they bought some credibility, because it was obvious to almost everyone that the "shutdown" was a complete scam. And, of course, that delaying implementation of Obamacare was clearly one of the best ideas the GOP has had in a very long time.

  • Paul.||

    Was there any direct evidence that the shutdown actually hurt the GOP? I mean, real evidence? I'm not talking about using the media as the guide, I mean with real people. Yeah, I went there... real people.

  • Pro Libertate||

    I'm sure there's some poll somewhere.

  • DarrenM||

    I had thought from day one that the shutdown was simply to make it very clear to the public that the ACA was totally on the heads of the Democrats.

  • James Taggart||

    Maybe the republicans are trying to follow the adage: "when your enemy is committing suicide, don't interrupt."

  • Robert||

    Damon Root's son apparently has at least a working knowledge of estoppel.

  • Robert||

    D'oh! It's Nicholas Bagley's son. But they're all part of the international kid conspiracy anyway.

  • Jonathan G||

    NOOOOOOOOOOOOOOOOOOOO!!!! He's shoving the Constitution up his ass everyday for pure convenience. Where's the articles of impeachment at???

  • josh||

    "standing", as a legal principle, needs to be greatly, or at least marginally expanded asap.

  • James Taggart||

    Let's ask Harry Reid to get right on that.

  • Freddy B||

    "In a letter and in congressional testimony, the administration has invoked a general statutory provision authorizing the IRS to “prescribe all needful rules and regulations” for enforcing the tax code. That rulemaking power, in the administration’s view, allows it to delay the effective dates of tax statutes in narrow circumstances."

    Even in the Administrations remark they have to sell their actions as 'narrow', even though it impacts individuals, corporations, and the economy on a broad scale.

  • Eggs Benedict Cumberbund||

    Fuck no he doesn't.

  • kmc212||

    Let's file a lawsuit to have the Federal Court enforce Obamacare the way it's suppose to so people will become really fucking miserable!

  • ConstitutionFirst||

    Any other color, any other party, they would be in jail never mind out of office.
    This is your racial preferences president, the rules don't apply. Just like real life.

  • poppavein||

    And they wonder why we need the 2nd Amendment.

  • HenryC||

    Actually a lot of it depends on what is being delayed. Some of the law requires the administration to right rules implement them. These can be delayed, other parts have time to implement imposed by law, and delaying these, which he is doing in some cases, is illegal.

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