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.