Does Obama Have the Lawful Power to Keep Delaying Obamacare?

As Peter Suderman
this morning, President Barack Obama has once again
delayed implementation of the Patient Protection and Affordable
Care Act’s mandate requiring businesses that employ more than 50
workers to provide qualifying health insurance to their employees.
This unilateral executive action raises all sorts of questions, but
underlying them all is a basic matter of law: Does the president
posses the legitimate authority to keep kicking this can down the

There’s some reason to think he does not. As University of
Michigan law professor Nicholas Bagley
argued back in July
when the president announced his first
implementation delay of the employer mandate:

In a letter and in congressional testimony, the administration
has invoked a general statutory provision authorizing the IRS to
“prescribe all needful rules and regulations” for enforcing the tax
code. That rulemaking power, in the administration’s view, allows
it to delay the effective dates of tax statutes in narrow

But is that right? For support, the administration points to a
practice dating back to at least 2000 of providing “transition
relief” for new tax legislation “when [its] immediate application
would have subjected taxpayers to unreasonable administrative
burdens or costs.”…

In pointing to past practice, administration officials are
tacitly arguing that it may act consistently with that practice
until either Congress or the courts say otherwise. This is the kind
of argument the executive branch makes all the time. As the
administration sees it, the IRS has been saying, “Hey, Congress, we
think you’ve given us the power to temporarily delay tax statutes
where implementing them is really hard. Let us know if we’re
wrong.” In declining to clip the IRS’s wings, Congress has acceded
to that view. (My kids make this kind of argument all the time.
When I tell my son to stop jumping on the couch, he’s apt to say
that he’s jumped on it before. For him, my earlier failure to tell
him to stop means that there’s no rule against jumping on the

Here’s another way to think about whether Obama has the
discretion to keep departing from the letter of the law. As
Georgetown law professor Randy Barnett
put it
, “tell me again why a future Republican administration
can’t just waive Obamacare.”

Update: At the Volokh Conspiracy, Case Western
Reserve law professor Jonathan Adler
pulls no punches

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

from Hit & Run

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