Another day, another illegal Obamacare delay

Yesterday, the Department of Treasury announced it was further delaying imposition of Obamacare’s “Employer Shared Responsibility” provisions (aka, the employer mandate).  These provisions were supposed to take effect at the beginning of this year.  Last summer, however, the Administration pushed back the requirement until 2015.  Yesterday, the requirement was pushed back another full year for companies with 50-99 employees and the 2015 requirements were relaxed for larger employers.  (Employers with fewer than 50 employees are exempt.)  Administration officials say this new delay is designed to help employers adjust to the law’s requirements, but many observers see more political motivations. As Juliet Eilperin and Amy Goldstein reported, “By offering an unexpected grace period to businesses with between 50 and 99 employees, administration officials are hoping to defuse another potential controversy involving the 2010 health-care law, which has become central to Republicans’ campaign to make political gains in this year’s midterm election.”  “Not coincidentally, the delays punt implementation beyond congressional elections in November,” notes Ron Fournier.  Kaiser Health News rounds up more coverage here.

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 suit.

Were the express command that the employer mandate take effect in 2014 not enough, other provisions of the PPACA reinforce the requirement.  As Michael Cannon points out, the PPACA expressly provides for the amount of the employer penalty to be assessed in 2014, and then provides for the penalties to be adjusted for inflation in subsequent years.  Further, the imposition of the employer mandate in 2014 is essential for the proper implementation of other parts of the law.  Most importantly, the employer mandate reporting provisions are essential to determining eligibility for tax credits and cost-sharing subsidies in state health insurance exchanges, and the tax credits are to be available beginning January 1, 2014.  The tax credits and employer penalties were supposed to take effect together, and no one’s suggested delaying the credits.  Further, as Ezra Klein noted back in 2009, an employer mandate was essential given the way the Congressional Budget Office scored health care reform proposals before they became law. (Perhaps coincidentally, the latest announcement comes just after the CBO revised its latest projections on the law’s impact.)

The employer mandate is not the only provision of the PPACA to be waived or delayed.  In some cases, such as the offering of a hardship exemption to enforcement of the individual mandate, the changes are perfectly legal. In some cases, the PPACA grants Treasury or HHS the authority to alter the law’s implementation.  Not so here.  The law’s deadlines are clear, and these deadlines operate in conjunction with other parts of the law.

Just because the employer mandate delay is illegal does not mean there is much anyone can do about it.  House Republicans may be willing to enact measures to constrain the administration’s efforts to rewrite the law, but there’s no chance such measures could make it past the Senate (let alone with a veto-proof majority).

Courts are unlikely to do anything here either, as it is not clear who would have standing to challenge the latest rule.  In order to demonstrate standing, a plaintiff must show that they are directly and personally injured by the government action at issue.  While delaying the employer mandate means some people will not get employer-provided insurance this year, it is difficult to figure out who those people are and even more difficult to prove what a given firm would have done were the mandate enforced on schedule.  Some firms would likely provide insurance to their employees, as the law anticipates, but others might elect to pay the penalty instead.  For standing purposes, it’s a matter of conjecture which firm is which.  And without the ability to demonstrate a concrete and particularized injury that was caused by the government’s action (and that would be redressed by a favorable court judgment) there is no standing to sue.  Thus when Judicial Watch filed suit against the Administration’s first mandate delay, the suit was promptly dismissed for lack of standing.  That case is now on appeal, but the result is unlikely to change.

The Obama Administration is not the first to take liberties with the laws it is charged with executing, and it will not be the last.  Yet the increasing brazenness with which the Administration is disregarding inconvenient or ill-conceived portions of its signature legislative achievement lowers the bar to a disturbing degree.  Even where ad hoc administrative revisions seem justified to ease the law’s implementation, such moves are illegal if not authorized by Congress.  The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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Eugene Volokh · February 11, 2014