Search This Blog

Monday, July 22, 2013

The Employer Mandate Delay and the Constitution

The Constitution says that the president "shall take care that the laws be faithfully executed."

At the Washington Post, legal scholar Ronald Rotunda questions the president's authority to delay implementation of the employer mandate.
The OLC [Justice Department Office of Legal Counsel] has also concluded that the president could refuse to enforce a law before the judiciary decides whether it is constitutional. Thus, before the Supreme Court ruled on the issue last month, Obama acted properly in legally ordering the Justice Department not to defend a federal law he considered unconstitutional because it did not recognize same-sex marriage.
The president does not, however, have carte blanche to refuse to enforce the law. “Obviously,” the OLC wrote in 1990, the president cannot “refuse to enforce a statute he opposes for policy reasons.” In 1838, the Supreme Court advised: “To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the constitution and entirely inadmissible.” When President Richard Nixon refused to spend funds that Congress had ordered him to spend, the court held without dissent in 1975 that the president must follow the federal statute, not his policy preferences.
Obama’s decision to “suspend” the employer mandate of the Affordable Care Act has no support in precedent and dramatically shifts the arc of presidential power. The Affordable Care Act has no provision giving the president power to suspend or postpone the mandate. The law requires employers with 50 or more full-time workers to provide health-insurance coverage or pay a penalty. Section 1513(d) of the act — titled “Effective Date” — stipulates that this mandate “shall apply” after “December 31, 2013.”
Which part of “shall” gives the president the power to ignore the law that he signed with such fanfare? If the president can change the effective date to Dec. 31, 2014, what prevents him from changing the date again, along with other provisions? As Sen. Tom Harkin (D-Iowa) asked: “This was the law. How can they change the law?