Thursday, July 11, 2013

More on Employer Mandate Delays

Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine.  (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.")  The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.

According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:

Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";

This is right, and it seems pretty firm.  

Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law.  In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.  

But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate.  Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.

The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014.  This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.

SDS

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