Delaying the Employer Mandate is not an Affront to the Constitution
A quick explainer.
Today, the Treasury Department announced that they will delay a portion of the employer mandate found in The Affordable Care Act (ACA). If this sounds familiar, it’s because the Administration has pulled this stunt before. In July of last year, the Obama Administration announced that it would delay the ACA’s penalty on employers with 50 full-time employees or more that choose not to offer health insurance to their employees. It’s a little different this time around, but in a nutshell, employers with 50-99 employees will have another year to transition, and employers with 100 employees or more won’t have to cover everyone (there are more details here).
Much like the last time around, this prompted reactions that President Obama was acting “unilaterally” and “lawlessly.” There were tweets about the “process” being what really matters and something about not wanting the President to circumvent the legislature.
But for all the consternation, the Administration’s action is pretty benign. The Executive Branch is simply allowed to practice discretion when it comes to enforcing complex legislation. It may feel weird when we hear that President Obama (or future President Paul or Cruz) is doing things by executive action, but as far as the Constitution goes, he is well-within his rights.
If you’re not fresh-up on Schoolhouse Rock, the process usually goes like this: Congress passes a bill, the President signs it, and the bill becomes law. The law becomes code, the code serves as a statutory authority for the regulations, and the regulations are the administrative laws that are enforced — or in this case, not enforced — by the Executive Branch. The public is presented with the finalized rules and is allowed to comment on the the regulations, which are published in the Federal Register.
There is one part of the law, in particular, that might give The Administration some leeway when it comes to the employer mandate: the actual portion of the Bill that pertains to it. The actual law, which I rarely see anyone cite to, is here, and there’s a really interesting section in part (d):
That phrase “by the Secretary” is referring to the Treasury Secretary (the employer penalty is in the IRS section of the code) who sits right under the purview of the Executive Branch. So this isn’t some monarchical scheme to take over the powers of Congress or a tyrannical move by some enraged despot; this is the process.
However, a few people raised some important questions about the President’s actions. Charles Cooke from National Review was one of them:
The Administrative Procedure Act actually obligates federal courts to step in when the implementation of certain laws has been “unreasonably delayed,” but even this is wishy-washy. Constitutional Law scholar Simon Lazarus addressed this last year:
Even in cases where an agency outright refuses to enforce a policy in specified types of cases — not the case here — the Supreme Court has declined to intervene. As held by former Chief Justice William Rehnquist in a leading case on this subject,Heckler v. Chaney, courts must respect an agency’s presumptively superior grasp of “the many variables involved in the proper ordering of its priorities.” Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.”
You could conclude that it’s a troubling loophole in the Constitutional process, but why would an Administration ever want to refuse to enforce a key part of their signature legislation? Or worse, why would President Obama give a potential Republican president the opportunity to continue this delay indefinitely? A simple delay in some of the administrative penalties of the law is not a refusal to enforce it (it’s also substantially different from a suspension of the law).
Lazarus makes the same point in his article, and also noted the historical precedent for such action, by the way of Mark Mazur:
There really is no solid argument that the Executive Branch is acting lawlessly here; the legal authority is clearly with the Administration in this instance, as it would be with any Executive, Republican or Democrat.
