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Delayed Mandate: No, It’s Not Okay

The Treasury Department claims it has authority to extend statutory deadlines, as it did this week with respect to the Obamacare employer mandate, in order to provide “transition relief” to those affected by laws.

But according to Constitutional law professor Jonathan Adler, writing in the Washington Posts Volokh Conspiracy blog, the Obamacare delay is certainly illegal:

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.

Even if we don’t take Adler’s word for it that you can’t waive deadlines without statutory authority, the delay seems a clear violation of the Constitution’s prescription that the president shall “take care that the laws be faithfully executed.”

Delaying a mandate for two years that employers have already known about for four years is not “faithfully” executing anything. It’s an abuse, particularly given that it delays the mandate until January 2016 and has the political motive of keeping employer compliance from becoming a problem during the 2014 election.

Even Treasury’s justification for the initial year-long delay, providing during testimony last summer, cites cases that delay implementation of laws from a few weeks to at most seven months.

What’s more, Adler notes, the employer mandate is not some isolated piece of the statute, but rather is integral to the functioning of the entire law.

The imposition of the employer mandate in 2014 is essential for the proper implementation of other parts of the law.  Most importantly, the employer mandate reporting provisions are essential to determining eligibility for tax credits and cost-sharing subsidies in state health insurance exchanges, and the tax credits are to be available beginning January 1, 2014.  The tax credits and employer penalties were supposed to take effect together, and no one’s suggested delaying the credits.

We are really in dangerous territory here. A precedent is being set for willy nilly monkeying around with laws. No doubt we’ll see more of it as Obama’s term winds down.

The Constitutionality of the executive branch delays to statutes is nevertheless too murky to warrant impeachment. And there’s certainly not enough public anger to justify putting the country through an impeachment trial.

I realize Obama already has flouted the intentions of Congress several times before. But I believe the bar for dragging the country into an impeachment nightmare should be high.

Nevertheless, this can’t go on forever. If he continues down this path, or if Obama ignores Congress or the courts in a way that is undeniable and outrageous, he should be impeached.

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22 Responses to Delayed Mandate: No, It’s Not Okay

  1. Impeachment !!!
    How dare you even suggest such a thing !
    The man is black and his character was shaped by Marxists and communists.
    He hates America, and Britain, but he loves the French.
    He even put up a tent for the French President.
    The first lady wore a 12 thousand dollar dress just to impress the American People that government and government jobs are where you need to be.

    That’s right folks, work for the government, the president just raised your salary, but it was against the law to do so.

  2. Whether this particular crime rises to the standard of “impeachable offense,” it’s clear to me that the totality of his record taken together comprises the most lawless administration ever, by far. Start back in 2009 with the illegal GM “bankruptcy,” (also known as Theft of GM bondholders’ assets for distribution to the UAW) and move forward.

    David Limbaugh compiled over 40 impeachable counts in 2011. The total is far higher now.

  3. There is no public outcry because the majority of “the folks” are blissfully unaware of the lawless behavior of their historic president. That is the fault of the state-run media who have abdicated their first amendment responsibility and have become cheerleaders for this regime; our Congress who is too afraid to tarnish the legacy of America’s first half black president; and the US Supreme Court which has been bastardizing our Constitution since Marbury vs Madison when they granted themselves judicial review.

    • It’s also the fault of–and I don’t have to tell you this–the “loyal opposition”, aka, the Congressional Republicans who do nothing but bemoan and posture. We the People cannot hold him accountable, but the legislative branch can and should. They are just a little too loyal, it seems to me.

  4. From the time this monster was formed until today, Obamacare is one tangled, horrific, implausable, and unenforcable horror.
    The Repubs, stuck in a place where forcing the President to actually follow his own law might be seen as endorsing it, but allowing the President to aribitrarily suspend this part or that part might be seen as a tacit approval of his actions. There’s no win here for anyone.

    The act will die of lack of nourishment, so to speak, because the main and vital ingredient has been “delayed” and will most likely never be allowed to be enforced.
    It’s over, the act is dead and everyone knows it. All that’s left is the blame and fingerpointing in the next election. After that comes the cleanup, or the attempt to right what’s been done wrong.

    If the Repubs take over all of Congress this year, as expected, MrO can spend the last years of his presidency trying to look relevant, enact strange EOs that no one ever hears about, and enjoying what’s left of his free ride. There’s no need for the upheaval of impeachment proceedings.

  5. IANAL, but I wonder about the Constitutionality of Obama holding the individual’s feet to the fire when he is changing the law at will for employers. I wonder if there can’t be a case made for the unfairness of the law, the burdens it places on one part of society while exempting another part.

    I have wondered about this from the beginning of Obamacare when he made all of his exemptions to his donors. He is going to make more union exemptions too, and in the end, the people without representation in Washington, including the working poor, will be the only ones paying for all.

  6. Another question: What is the actual number of uninsureds before this monstrosity was created? Ed Henry reported tonight that out of the alleged 3.3M people who have ‘enrolled’, only 11% did not have insurance before. Obama created a crisis when, in fact, there was no crisis. We were told 15-30M Americans were uninsured. Why are there only around 300,000 who have ‘enrolled’. Worse yet, the enrollment numbers are not accurate – no one except the insurance companies know who has actually PAID into the system.

    Also, a study (WSJ) in 515 counties in 15 States show that that lower income rural areas often only have one insurer – Blue Cross Blue Shield – and only one hospital. Costs are skyrocketing in these areas compared to more populated wealthy areas.

    IMO, Obama is guilty of something much worse than lying. He is guilty of deliberately. and with malice of forethought, attempting to unilaterally shove a socialistic lifestyle down the throats of 320M Americans, regardless of the consequences. He is a con artist and a shyster. He deserves the ultimate punishment for his criminal activity.
    As Jonathan Turley said tonite on Megyn Kelly: “What we are seeing now is the usurptation of legislative authority that is unprecedented in our country”.

  7. Keith, where have you been the last five years? Setting the bar high for impeachment? Really. What exactly would Obama have to do so that you could finally see that he is a traitor and has not lived up to the oath of the office of the president-intentionally!

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