Wednesday, July 17, 2013

Authority for ACA Delay

Simon Lazarus argues at The Atlantic that the White House's delayed enforcement of the employer mandate is legal.  We previously posted on this here and here.

Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations.  Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed."  But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.

In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.

Mazur's letter also cites the IRC:

The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.  Administrative authority is granted by section 7805(a) of the Internal Revenue Code.

This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations. 

SDS

http://lawprofessors.typepad.com/conlaw/2013/07/authority-for-aca-delay.html

Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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