A Careless Executive

Jul 29, 2013



Is Obama lawless? House Republicans certainly think so. The issue involves the Affordable Care Act, under which employers with 50 or more full-time workers must provide health insurance in terms defined by the statute or pay a $2,000 penalty per employee. Known as the “employer mandate,” it was to take effect in 2014. On July 2, however, the Treasury Department announced it would delay enforcement of the mandate, and certain reporting requirements necessary for its administration, to 2015.

In response House Republicans said that Treasury lacked the legal authority to postpone the mandate. Not that they had changed their mind about the ACA: They were still opposed to it, implacably so, having voted to repeal or revoke parts of it some 39 times. Their point was, and remains, that if there is to be a change in the ACA, it must be legislated by Congress.

Willing to grant the administration the authority to delay the mandate by one year, Republicans wrote legislation to that end that was introduced by Rep. Tim Griffin of Arkansas—the plainly named Authority for Mandate Delay Act. Having control of the House, Republicans passed the bill with only one of their members voting against it and some 35 Democrats voting in the affirmative.

Instead of praising the House for its action and asking the Senate to approve the measure, the administration stuck to its position, announced in a veto threat prior to the House vote, that the authority-granting legislation was “unnecessary.” “Worst thing said about my bill,” Griffin wryly observed in an interview, “is that it’s redundant.”

In a letter to the House Energy and Commerce Committee, the Treasury Department explained its decision to delay the mandate as “an exercise” of its “longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.” The source of that authority, it said, is the Internal Revenue Code (IRC), the relevant section of which provides that the Treasury 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.”

Thus, as Treasury sees it, the IRC envisions circumstances in which new legislation that alters “law in relation to internal revenue” (as the ACA does) may need regulatory adjustments including the provision of transition relief for parties affected by the law’s implementation. In its letter, Treasury cited 18 uses of its IRC authority to “postpone application of new legislation on a number of prior occasions across [the Clinton, Bush, and Obama] Administrations.”

The Treasury’s examples of transition relief seem to resemble the one afforded by the mandate delay. Yet whether the precedents are truly on point, as the lawyers say, and whether the Internal Revenue Code really confers the authority claimed by the Treasury secretary and his predecessors are fair questions, already being pursued by the Energy and Commerce Committee. However those inquiries turn out, there remains a constitutional disagreement between the president and the House over his decision to delay the mandate.

Rep. Scott Garrett of New Jersey made that clear by introducing a concurrent resolution stating that by postponing the mandate the president has actually violated the Constitution, specifically Section 3 of Article II, which provides that the president “shall take care that the laws be faithfully executed.” The resolution observes that the Constitution vests all legislative powers in Congress, that Congress passed the ACA, that the ACA explicitly states that the employer mandate in the statute “shall apply to months beginning after December 31, 2013,” and that the executive decided “that it would unilaterally delay the enforcement” of the mandate until 2015. The point of Garrett’s resolution is that the president has no constitutional authority to pass a law on his own but has acted as if he did, usurping the legislative powers vested in Congress.

Garrett’s resolution directs attention to the Take Care Clause. The clause imposes a duty on the president in the exercise of his executive power. Because the laws he must execute include the Constitution, he may not enforce laws he believes in good faith are unconstitutional—an interpretation made by the Justice Department’s Office of Legal Counsel, in Democratic and Republican administrations alike. Enforcement of constitutionally valid laws, however, cannot take place in every circumstance, it is generally agreed. “The ordinary, efficient administration of the law requires discretionary decision making on the part of enforcers,” write Robert J. Delahunty and John C. Yoo (both veterans of OLC) in their timely article on the Take Care Clause in the March 2013 issue of the Texas Law Review. Still, “that does not mean that all breaches of the duty are tolerable.” The president may not refuse to enforce a law he disagrees with in terms of policy, or that he dislikes because of its political impact.

How courts might respond to a claim that the president lacked authority to delay the mandate—that such authority is not provided in those 18 precedents, or in the IRC or any other federal statute, or in the Constitution—is hard to say. Such a claim would have to be brought by someone with “standing”—someone who suffers a present or imminent injury that a court can remedy.

Employers would be hardpressed to meet that requirement, since the delay is intended to give them relief. Workers who aren’t offered insurance by their employer during 2014 and wind up being fined for not getting their own coverage (under the ACA’s “individual mandate”) might have a shot, though still it would seem a long one, at standing. Even if a party with standing could be found, and a challenge to the president’s authority made, a ruling against the government seems an uphill battle. As Delahunty and Yoo point out, “the prevailing standard of review for challenges to executive nonenforcement decisions is extraordinarily lenient.” This is so in part because courts have often been reluctant in separation of powers cases to address constitutional issues.

Of course, it’s not a lawsuit that House Republicans are hoping for. The argument they’re making is political, in the best sense of the word, inasmuch as it respects the Constitution by insisting on its place as our guide to political action—action that in the matter at hand should have included Congress, and still could.