By Arlene Wohlgemuth
During a visit last week to Monticello with French President François Hollande, President Barack Obama decided to stroll out onto a terrace that is normally off-limits to visitors. Breaking protocol, the president was overheard saying, “That’s the good thing as a president, I can do whatever I want.”
Coincidentally, his quip came on the same day the Treasury Department announced yet another unilateral delay of the Affordable Care Act’s employer mandate, pushing it back to 2016 for small businesses and relaxing coverage requirements for large businesses beginning next year.
This is the latest in a series of legally dubious delays and revisions to the 2010 health care law — undertaken not by legislative amendments but by administrative fiat.
The employer mandate was first delayed (via blog post on the Treasury Department’s website) last July. Then as now, the administration gave no legal justification for its decision other than to assert “longstanding authority to grant transition relief when implementing new legislation.”
Although previous administrations may have delayed the implementation of a law in order to ensure a smooth transition to new policies, the delays of Obamacare have been unprecedented in both their number and length.
The part of the employer mandate that applies to mid-size firms (those with 50 to 100 employees) has now been postponed two years beyond the deadline stipulated in statute, which clearly states that it “shall apply to months beginning after Dec. 31, 2013.” The Treasury Department even hinted last week that it might delay the mandate again if it doesn’t like the way things are going.
But the problem is that ACA itself does not allow the White House to suspend indefinitely those provisions, which can only be repealed by Congress.
And in fact, last year when the Obamacare exchanges crashed upon launch, House Republicans proposed bills suspending both the employer and individual mandates. But the administration balked, preferring to change the law by executive decree rather than going through a duly-elected Congress.
But why delay the mandate at all? One reason might be that the administration knows it is impossible to implement Obamacare in a way that does not hurt American businesses and their employees, so it is putting off the most unpopular parts of the law.
Another, more insidious reason might be that delaying the employer mandate will discourage businesses from offering costly coverage and therefore encourage more people to sign up for subsidized coverage on the exchanges—something the administration desperately needs more people to do if it wants to reach its enrollment goals and limit premium hikes for exchange plans next year.
Yet another reason is that the mandate relies on a complex system of reporting requirements to determine if an employer has offered sufficient coverage to its employees. These reporting requirements obviously cannot take effect until the IRS issues rules about when and how to file them. But the reporting requirement and the mandate are not the same thing, and the ACA is clear that it “hereby impose(s) on the employer an assessable payment” for not complying with the mandate, whether or not the IRS has the capability to administer it.
In other words, that the ACA creates a bureaucratic morass for government and businesses to navigate is not a justification for ignoring its provisions.
Whatever the motivations, the administration’s cavalier approach to federal law foments an atmosphere of chaos and uncertainty about which parts of Obamacare will change next, and for how long, and for whom.
Even worse, it undermines the Constitution’s requirement that the president “take care that the laws be faithfully executed,” and sets a dangerous precedent for future presidents. Arbitrary executive power of this sort might be expedient for the administration in the short term, but in the long term it hurts constitutional democracy by eroding the rule of law.
If the Obama White House can delay the employer mandate and effectively rewrite parts of a sweeping new law like the ACA, and justify it with flimsy arguments about “ensuring a smooth transition,” what will stop a future president from doing the same? What will stop a potential Republican president from refusing to enforce the entirety of the ACA beginning in 2017?
Conservatives should not rejoice in that possibility. Our first loyalty is to the Constitution, and to undermine it — even to stop Obamacare — would further erode the foundation of American democracy.
As John Adams said, “We are a nation of laws, not of men.” Not even the president of the United States can do whatever he wants.
Wohlgemuth is the executive director and director for the Center for Health Care Policy with the Texas Public Policy Foundation, a nonprofit, free-market research institute based in Austin. She may be reached at email@example.com.