Why Obama Wants a Unilateral Delay

by Jonathan Strong
The GOP is willing to postpone the law, but he doesn’t want to give them the satisfaction.

In the wake of the disastrous roll-out of the Affordable Care Act’s new exchanges, more and more Democrats are signaling a willingness either to delay the individual mandate, extend the enrollment period to sign up for Obamacare, or enact some other alternative.

But if President Obama does decide to delay the law, will he do so on his own, once again? Or will House Republicans be able to force him to go through Congress to enact a change to the statute?

“The president needs to follow the law,” says Representative Michele Bachmann of Minnesota. “He’s exempted himself from the law throughout much of his presidency. People are getting tired of that. They’re calling him the ‘lawless president.’ And people expect that if they have to follow the law, he should have to follow the law.”

A decision by Obama to delay the individual mandate would be politically humiliating for the president because he refused to even discuss delaying the mandate in the lead-up to the government shutdown.

Only hours before the government shut down, the House GOP passed a bill that included a one-year delay of the mandate as its main policy rider to an otherwise “clean” continuing resolution bill. To turn around and delay it after the government remained shut down for over two weeks would give Republicans ammunition to argue that the whole fracas could have been avoided if Obama had merely agreed to do something he would later go on to do himself.

But a GOP push to enact a bill delaying the mandate also raises the stakes for how Obama delays it, if he chooses to. A unilateral decision by Obama to delay the mandate as the House has proposed would be even more of a slap in the face to Congress’s prerogatives.

That’s especially so because, in explaining his decision to delay the employer mandate unilaterally, Obama said he was forced to do so because of the intransigence of House Republicans.

“In a normal political environment, it would have been easier for me to simply call up the speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law . . . it looks like there may be some better ways to do this; let’s make a technical change to the law. That would be the normal thing that I would prefer to do,” Obama said at an August 9 press conference.

“But we’re not in a normal atmosphere around here when it comes to ‘Obamacare.’ We did have the executive authority to [delay the mandate], and we did so,” Obama added.

In an interview with the New York Times, Obama mocked House Republicans for even questioning his right to delay the employer provision. “Ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers,” he said.

Numerous experts, however, have raised questions about the legality of the administration’s decision to waive the employer penalties for a year. Even liberal Democratic senator Tom Harkin asked the New York Times, “This was the law. How can they change the law?” (White House spokesman Jay Carney told reporters Harkin was being “willfully ignorant.”)

One twist, as Conn Carroll notes at Townhall, is that there is a legal case for differentiating between the employer mandate and the individual mandate. One provision in the law grants the Health and Human Services secretary the authority to craft a “hardship” exemption to the individual-mandate tax for those who are unable to acquire affordable health insurance. Theoretically, Secretary Kathleen Sebelius could certify that millions of Americans had suffered such a hardship because they couldn’t sign up for Obamacare on Healthcare.gov.

That said, there are several legal technicalities that make using that process confusing and difficult, and it would still be controversial to make such a big change through a mechanism obviously intended for aberrant cases.

So why wouldn’t Obama ask Congress to help him change the law? Since Republicans have passed bills that would do so, the only possible explanation is that it would give Republicans the satisfaction of taking part in modifying his signature legislative accomplishment. Which, it should be noted, it would. The only thing more politically humiliating for Obama than having to delay the mandate himself would be having to ask Speaker John Boehner to do it for him.

Some House Republicans, though, are less focused on those political consequences and more on the actual people whose lives are being impacted by the health law’s disastrous roll-out.

“We tried to flag this problem early on,” says Representative Fred Upton, the chairman of the House Energy and Commerce Committee, which has jurisdiction over health care.

“We tried to ask the tough questions — were they going to be ready or not? Their answer was: ‘Oh, absolutely! We can hardly wait.’ And now, as a consequence, millions of people have been told: ‘Your policy is over. Good luck.’”

Upton says the consequences are going to provoke anger among millions of Americans who are beginning to learn what Obamacare means for them. As that puts the heat on congressional Democrats, it will be interesting to see if Republicans in the House will continue to defend their constitutional prerogatives — so far usurped routinely by Obama.

— Jonathan Strong is a political reporter for National Review Online.