House Questions Obama’s Authority to Delay ObamaCare

Obama and executive power

“[The President] shall take care that the laws be faithfully executed…” — Article II, Section 3 (The Faithful Execution Clause)

Last week, the Obama administration elevated blogging to new heights.  The Treasury Department used its Treasury Notes blog to announce a one-year delay of ObamaCare’s employer mandate.  This was followed by a post on The White House Blog by Valerie Jarrett, President Obama’s closest advisor, titled “We’re Listening to Businesses about the Health Care Law.”

The administration’s announcement demonstrated that it’s hip to the modern favored form of communication.  But this announcement came on the eve of the July 4th weekend, a time when we reflect on the timeless principles of our founding.   The flashiness of the blog medium and its informal, in-touch style of conveying the ObamaCare delay has not blinded Americans to what underneath amounts to an old-fashioned executive power grab.

ObamaCare’s Employer Mandate Effective in 2014

The problem is that ObamaCare (PPACA), which was passed by Congress and signed into law by President Obama, has a clear effective date for the employer mandate. PPACA section 1513, dubbed “Shared Responsibility for Employers” (the employer mandate), states that the excise tax penalties on employers under IRC Section 4980H “shall apply to months beginning after December 31, 2013.”  End of story.

House Members Weigh-In

In a must-read post on Roll Call, authors Steven T. Dennis and Matt Fuller have complied reactions from House Republicans who share a healthy skepticism of the President’s authority to delay the mandate until 2015.

Darrell Issa of California, the chairman of Oversight and Government Reform, called the decision “another in a string of extra legal actions” taken by Obama. “As a former constitutional law teacher, President Obama must know that this action gets into very questionable constitutional territory,” Issa said in a statement to CQ Roll Call. “It also paves the way for future administrations to simply not enforce parts of Obamacare they don’t believe are functioning well.”

To Chairman Issa’s point, the administration has already taken troubling steps down this road by granting ObamaCare waivers from the law’s restrictions on annual limits (see PPACA section 1001) prior to 2014.  You won’t see any statutory authority for the waivers in PPACA.  Matthew Boyle broke that story at The Daily Caller over two years ago now, and many have questioned whether it created an opportunity for political favoritism.  In this case, it’s clear that the delay is an attempt to save the Democrats from political backfire in the 2014 mid-term elections.

And Rep. Phil Roe of Tennessee, the chairman of an Education and the Workforce subcommittee, asked the Congressional Research Service to investigate.  “I believe this administration has made a habit of bypassing Congress and it sets a very dangerous precedent,” Roe said in a statement to CQ Roll Call. “Both Republicans and Democrats should be very concerned, and I will continue to closely monitor these actions and hold the president accountable.”

Rep. Roe is right, and it hasn’t even been limited to ObamaCare.  We’ve seen President Obama refuse to enforce the law in the welfare, immigration, and DOMA contexts, to name a few.  Regardless of how you feel about any of those policy outcomes, this is a deeply troubling procedural precedent that could eventually rise the level of a constitutional crisis.

Rep. Steve King, R-Iowa, said, “If President Obama wants to make changes to Obamacare, he must come to Congress. … We are a nation governed by laws written by Congress, not memos and blog posts written by bureaucrats.”

And that’s the key point.  Congress needs to realize that it will have abandoned its legislative authority and positioning and the balance of power if it cedes to the executive branch the authority to waive statutory law.  Members of Congress should regard these executive waivers and nonenforecement policies as an affront to their office.  Plus, it’s insulting to the constitutional process for the administration to announce its official intent to disregard an act of Congress by blog post.  Well said, Rep. King.

Nonenforcement Is Not an Implied Power of the Executive Branch

As I wrote in my initial post on this ObamaCare delay, the President does not have the authority to selectively choose which laws he will enforce.  To grant the President this power is to grant a de facto legislative power in the executive branch.  Just as the President alone does not have the power to make law, he does not have the power alone to repeal law.  In other words, the President’s job is execute the law.

But if we let this pattern continue unchallenged, that might change.  The problem here is that we all agree the employer mandate is terrible policy.  As a practical matter, we are all thankful we don’t have to suffer from its job-killing and hours-reducing (not to mention regulatory headache-inducing) effects for at least another year.  Some might argue that to challenge to delay is to fight for its timely implementation.  They are wrong.  We should challenge the delay to fight for its full repeal through the proper, constitutional process.

Beyond ObamaCare

President Obama knew he needed to put off the damage that the employer mandate will cause until after the 2014 mid-term elections for political reasons, but he also knew Congress would never pass a one-year delay of the employer mandate.  Once you open up that can of worms, the only logical next step would be to pass a full repeal.

So he acted alone, again.

The administration may appear to be conceding the failure of a key part of ObamaCare, but the broader implications for executive power are far more troubling.  The ends never justify the means when it comes to constitutional process and interpretation, and there is far more at stake here than ObamaCare.

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