HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, November 24, 2014

Guest Blogger Assistant Professor Jessica L. Roberts: Executive Power and the Employer Mandate

RobertsOn Friday, November 21, 2014, House Speaker John Boehner, on behalf of the GOP-run House of Representatives, filed a lawsuit alleging that the Obama administration abused executive power with respect to the Affordable Care Act (ACA). The suit, filed against the secretaries of the Treasury and HHS and their respective departments, makes two central claims: one, that the White House acted unlawfully by twice delaying the implementation of the employer mandate and two, that the funds tied to the ACA’s cost-sharing program were not authorized by Congress.

While I’m sure that that this lawsuit will spark much debate in the legal community, particularly with respect to whether Congress has standing to file such a claim or why it opted for a lawsuit opposed to using more conventional mechanisms for challenging the actions of agencies, this post focuses primarily on the substance of the employer-mandate claim. That portion of the complaint asserts that “Defendants Lew and the United States Department of the Treasury also have violated the Constitution by issuing a regulation that effectively amends ACA provisions that impose mandates on certain employers and establish a deadline by which such employers must comply with those mandates. These unconstitutional actions are estimated to cost federal taxpayers at least $12 billion.”

As written, the employer mandate would require large employers to offer minimum essential coverage that is affordable to their full-time employees or face certain tax penalties should one of their workers purchase subsidized coverage on the exchanges, effective at the beginning of this year. That provision, just as written, creates the opportunity for a statutory interpretation field day. For instance, how large is a large employer and who is a full-time employee? Thankfully, the statute offers at least some answers. A large employer employs an average of at least 50 employees, and a full-time employee works an average of at least 30 hours per week. 

But with all of that said, such a provision is clearly open to gaming. An employer can easily manipulate the structure of its workforce to avoid the mandate. It could layoff or fail to hire individuals to stay below the fifty employee threshold, tinker with its number of full-time versus part-time employees/contract workers, or reduce the hours in its work week. In fact, employers were already considering restructuring their workforces in response to the looming implementation date.

Thus, it was perhaps no great shock when the Obama administration decided to delay the implementation of the mandate, first until 2015 and again for so-called smaller employers—employers with 50-99 employees—until 2016. At least part of the concern was the negative impact that the employer mandate could have on the labor market prior to the midterm elections. 

Yet Republicans never seemed quite that supportive of the employer mandate to begin with, which is why the claim articulated in this newly filed lawsuit rings a bit hollow. Just a few weeks ago, House Speaker Boehner and newly minted Senate Majority Leader Mitch McConnell listed fighting to restore the 40 hour work week as among the GOP’s primary goals in what appears to be a thinly veiled attempt to tank the employer mandate, the very provision members of the GOP are now fighting to have implemented as written. In short, Republicans have no love for the employer mandate, so why are they so deeply invested in its proper implementation? Perhaps the simple answer is that the opponents of the employer mandate would seek to undermine it in the right way, via an act of Congress, whereas the Obama administration sought to preserve it the wrong way, though executive action. (And not surprisingly many speculate the abuse of executive power—but in the context of immigration not health-care reform—is what this lawsuit is really about.) Yet the rightful powers of those respective branches of government aside, the employer mandate, whether it lives or dies, is clearly a heated political issue and one that will likely not be going away anytime soon.

-Assistant Professor Jessica L. Roberts

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