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Delaying Obamacare to Death
The president cannot change a law or decline to enforce it for policy reasons.

President Obama and HHS secretary Kathleen Sebelius

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The point of all this is not to bore you to death but to contrast the arbitrary and seemingly open-ended delays of Obamacare with legitimate examples of delays to certain sections of statutes. In the above cases cited by the administration, delays were needed to ensure a smooth transition to changes in policy or clarify exactly who would be subject to new rules.

Not so with the delays of Obamacare. In its 227-page bulletin on the employer-mandate delay, Treasury referred to its bulletin of last July as a justification for the ongoing delays announced this week. In the earlier bulletin, the reason cited is a desire to “provide additional time for dialogue with stakeholders” and to “simplify the reporting requirements,” as well as to give employers extra “time to develop their systems for assembling and reporting the needed data.”

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Have employers not had enough time to figure out how to report this stuff? In the four years since Obamacare’s passage, has the IRS not had enough time to figure out how to impose taxes on employers that don’t comply with the law? With this week’s announcement, the employer mandate for mid-sized firms has now been delayed two years from when it was originally supposed to take effect — and Treasury even hinted last week that it might delay the mandate yet again if things don’t go smoothly come 2016. Meanwhile, the mandate will go ahead, in a weakened form, for large firms beginning in 2015. Either there is a problem with the reporting requirements, or there isn’t. Why the arbitrary distinction?

The more likely explanation is that any attempt to enforce the mandate as originally written would have economic consequences in the form of both large and midsize employers’ cutting back hours, downsizing, and hiring fewer workers. In that case, the delay has nothing to do with the technical problems of implementing the mandate tax and everything to do with mitigating the harmful political effects of a deeply flawed and unpopular policy.

Trouble is, a U.S. president cannot decline to enforce laws for policy reasons, nor can he change a law. All he can do is sign, veto, or propose new legislation. In 1998, the U.S. Supreme Court in Clinton v. City of New York affirmed, “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.” And this is not a simple matter of choosing not to collect penalties: As constitutional-law professor and Volokh Conspiracy co-founder Eugene Kontorovich noted, “The employers are not being relieved just from taxes, but from direct primary legal obligations to provide insurance.”

That is, major parts of Obamacare are effectively being repealed by the Obama administration in what amounts to rule by administrative decree — a far cry from John Adams’s notion that “we are a nation of laws, not of men.”

Arbitrary executive power of this sort might be expedient for the administration in the short term, but it dangerously undermines the rule of law. As my colleague Mario Loyola put it recently, “The power to say what the law is not is the same as the power to say what the law is, and under our Constitution the president doesn’t have that power.”

If the White House can repeal and rewrite major provisions of a sweeping new law like the ACA with nothing more than rickety excuses about “ensuring a smooth transition,” what will stop a future Republican president from doing the same for his own policy agenda?

That’s not something to look forward to, but something to fear. Our loyalty is and must always be to the Constitution. Delaying Obamacare to death, though it might be a short-term victory, would not be worth it if it meant sacrificing the rule of law. As the administration’s delays and justifications mount, we are ensuring a smooth transition not to a working health-care system, but to lawlessness.

— John Daniel Davidson is a senior health-care-policy analyst at the Texas Public Policy Foundation and a 2013 Lincoln Fellow of the Claremont Institute.



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