As Patrick notes below, the Obama administration announced today that the employer mandate, already delayed for a year, will now be further delayed for a year for employers with 50 to 100 workers and will be loosened somewhat for those with more than 100 workers. It will certainly be fun to see who among the Obamacare amen chorus chooses to defend this move as legitimate and reassuring. It is surely further proof that everything is fine, right?
But whatever it might tell us about the White House’s assessment of its administrative and political difficulties, it surely reinforces something we already knew about the administration’s assessment of its obligations to the rule of law — namely, that the administration believes it has none.
We have here a written statute that levies a fine on large employers who fail to provide insurance coverage as a benefit to their employees. It defines a large employer as “an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year,” provides a relatively detailed set of criteria for applying that definition, and states that the provision “shall apply to months beginning after December 31, 2013.” We have already seen that latter date pushed back by a year without obvious legal authority, and now we see it pushed back by another year for some affected employers while the requirement is loosened for others. If this kind of selective enforcement of a public law is legitimate, then how exactly would the president describe the limits of his ability to engage in such selection? Is he bound in some definable way to the particulars of statutes as written and passed by Congress, or does he merely take them as suggestions for how he might proceed?
The employer mandate, like the law of which it forms a part, is a bad idea. I agree with the administration that the mandate should not take effect. But to achieve that, it would need to be repealed. There would most certainly be a majority in Congress in favor of repealing it — and of repealing the individual mandate while they’re at it. The House Republicans should obviously immediately pass a measure doing both, or separate bills for each of the mandates (as they did last year when the president first suspended the employer mandate). If the Senate passed the same, would the president veto it because he would rather ignore bad laws than repeal them? Does he deem Congress unnecessary? Do congressional Democrats agree with him?