A CARELESS EXECUTIVE

—OBAMA’S FAILURE TO DO HIS CONSTITUTIONAL DUTY 8/19/13

ACA, under which employers with 50 or more full-time workers must provide health insurance in terms defined by the statute or pay a $2000 penalty per employee, known as the employer “mandate”. On 7/2 the Treasury announced it would delay enforcement of the mandate. Republicans said that Treasury lacked the legal authority to postpone the mandate that is there is to be ac change in he ACA, it must be legislated by congress.
Treasury explained its decision to delay the mandate as “an exercise” of its “longstanding administration authority to grant transition relief when implementing new legislation like the ACA. The source of that authority is the IRC section of which provides that the Treasury secretary “shall prescribe all needful rules and regulations for the enforcement of this title, including all rule and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.
Treasury citied 18 uses of its IRC authority to “postpone applications of new legislation on a number of prior occasions across other administrations. There remains a constitutional disagreement between the president and the House over his decision to delay the mandate. By postponing the mandate the president has actually violated the Constitution, specifically section 3 of article ll, which provides that he president “shall take care that the laws be faithfully executed”. Constitution vests all legislative powers in congress, that congress passed the ACA, that congressed the ACA, that the ACA explicitly states that the employer mandate in the statute “shall apply to months beginning after Dec 31,2013, and that the executive decided “that is would unilaterally delay the enforcement” of the mandate until 2015.
The president has no constitutional authority to pass a law on his won but has acted as if he did.
Still “that does not mean that all breaches of the duty are tolerable. The president many not refuse to enforce a law he disagrees with in terms of policy, or that he dislikes because of its political impact.
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 hard pressed to meet that requirement, since the delay is intended to give them relief. Workers who aren’t offered insurance by their employers during 2014 and wind up being fined for not getting their own coverage might have a shot.

Source—weekly standard, terry eastland, texas law review.

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