Part two of the Washington Examiner's 10-part series "With the Stroke of a Pen: How Obama abuses executive power to make the law of the land."
“If Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case,” President Obama told the New York Times about Republican objections to his decision earlier this year to delay Obamacare’s employer mandate for a year.
“But ultimately, I’m not concerned about their opinions,” Obama continued, “very few of them, by the way, are lawyers, much less constitutional lawyers.”
Set aside Obama’s gratuitous and false dig at his opponents in Congress, however, and look at what the Obamacare law says, compared to the justification used by the president and his appointees for the mandate delay.
Section 1513 of the Affordable Care Act, titled “Shared responsibility for employers regarding health coverage,” levies a $2,000-per-employee fine on all employers employing more than 50 people who do not offer health insurance to their employees.
About this series
On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."
Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."
"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.
"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.
Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.
In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.
The top 10 instances will be examined over the next two weeks, and more will come later.
Stories in this series
2. The employer mandate delay
3. War in Libya
4. The illegal Solyndra contract modification
5. Rewriting federal education law by waiver
6. Unconstitutional NLRB appointees
7. The Yucca Mountain delay
8. Gutting welfare reform
9. The Gulf of Mexico drilling moratorium
10. Regulating the Internet
That fine goes up to $3,000 for every employee who obtains insurance through Obamacare exchanges and who receives a subsidy from the government while doing so.
This provision is an integral part of Obamacare. Without it, many more businesses would stop paying expensive health insurance premiums for their employees, and instead let taxpayers pick up the tab through the Obamacare exchanges.
The Congressional Budget Office has estimated that delaying the employer mandate for one year would add $12 billion in costs to Obamacare’s price tag. The CBO also warned that making the delay permanent would further drive up Obamacare’s cost.
Delaying the provision will force an estimated 1 million Americans out of their current employer-sponsored health plans. Half of those people will get less desirable health insurance through Medicaid, and the other half will get no insurance at all. CBO predicted those numbers would increase dramatically with a permanent delay.
Section 1513(d) of Obamacare also clearly states, “The amendments made by this section shall apply to months beginning after Dec. 31, 2013.”
Nothing in the employer mandate section says the president, the secretary of Health and Human Services, or any other government official can change the effective date.
So what section of Obamacare did Obama cite to justify his employer mandate delay? None.
Instead, the Treasury Department asserted, in both a letter and testimony to Congress, that Section 7805(a) of the Internal Revenue Code authorizes Obama to grant “transition relief” to as many parties as he sees fit for as long as he wants.
But here is what Section 7805(a) actually says:
“Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”
That’s it. That was Obama’s entire legal justification for the Obamacare mandate delay.
Treasury said the IRS has previously used the section to delay a penalty under the 2007 Small Business and Work Opportunity Act and a tax hike in the 2011 Airport and Airway Extension Act.
But both of those delays were for less than a year (six months and one month, respectively), only applied to minor portions of much broader legislation, and were issued the same year the original legislation passed.
By contrast, the Obamacare employer-mandate delay was issued more than three years after the original law passed, will be in effect at least a year (possibly longer), and involves a major cost saving feature of the underlying legislation.
Furthermore, there is simply no limiting principle to Obama’s chosen legal justification for the employer-mandate delay. If one year, why not two? If two years, why not four? If the employer mandate can be delayed, why not the individual mandate.
Nothing in 7805(a) in any way limits the president’s discretion, so, by using that as his sole legal justification, Obama is enabling himself and any future president to rewrite the law at will with no input from Congress.
As any honest constitutional lawyer would tell you, that is not right.Conn Carroll is a senior editorial writer for the Washington Examiner.