• On The Wall Street Journal on Obama on the employer mandate delay

    The following is a guest post by Nicholas Bagley, University of Michigan Assistant Professor of Law.

    Asked yet again about the legality of the delay of the employer mandate, President Obama said on Friday that

    in a normal political environment, it would have been easier for me to simply call up the Speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law. … That would be the normal thing that I would prefer to do. But we’re not in a normal atmosphere around here when it comes to “Obamacare.” We did have the executive authority to do so, and we did so.

    In an editorial the next morning, the Wall Street Journal presented this as tantamount to a confession of illegality. If the president thinks he has authority for the delay, the editorial wondered, “then why did he say he would normally ask for a legislative ‘tweak.’ Either the fix requires legislation or it doesn’t.” Further indulging the premise that the president broke the law, the editorial opined that the president’s statement was “certainly revealing about his attitudes on Presidential power and the constraints of the U.S. Constitution.”

    Oh boy. Where to start.

    What’s most maddening about the editorial is its refusal to engage with the legal justification that the administration has actually offered for delaying the employer mandate. It’s not a terrific justification—I’ve cataloged here some of the problems with it—but it’s at least colorable. You can’t accuse the president of ignoring the law while ignoring the administration’s explanation for why his actions comport with the law.

    Nor did the Wall Street Journal catch the president in a contradiction. As it happens, laws are often unclear about the scope of the authority they confer upon the executive branch. Hard questions crop up all the time. How much latitude, for example, does the IRS have when it goes about issuing all “needful rules,” as it is authorized to do? It’s not inconsistent for President Obama (or, really, his lawyers) to conclude both that the administration has the authority to delay the mandate and that the question is sufficiently close that, all else being equal, it’d be better if Congress explicitly blessed it.

    The trouble is that all else is not equal. Having resolved that it had the legal authority to delay the mandate, the Obama administration faced a dilemma. It could either seek a legislative fix from a hostile Congress or invoke its contestable interpretation of its statutory authority. That’s not much of a choice. As a general matter, legislative intransigence—not just Republican intransigence during a Democratic administration, but also Democratic intransigence during a Republican administration—predictably increases the pressure on the president to construe his statutory authority broadly.

    Here’s the thing, though. None of this implies that the president has broken the law. What it implies is that partisan stalemate of the sort with which we have become depressingly familiar will encourage aggressive interpretations of statutory authority and, over time, augment the president’s power at Congress’s expense. Whether you think that’s good or bad shouldn’t depend on whether you dislike President Obama. It should depend on your views about the proper dispersal of authority in our constitutional system. That’s a much bigger—and much harder—question.

    • A “hostile Congress” which passed a bill which would codify the employer mandate’s delay, which President Obama threatened to veto?

      • Perhaps the House is considered “hostile” because they also also included a provision in the bill to delay the individual mandate too. That is an important part of the law, whereas the employer mandate is less so. Not to mention the numerous repeal bills from the same chamber…

        So, when the House passes a bill that deliberately breaks a law rather than improving it as requested, I think you can call that hostile.

        • MV:

          The individual mandate delay was in a separate bill altogether. President Obama threatened to veto both.

          Nice try, though.

        • Also, Congress passing a bill to amend the law is not “breaking” the law.

        • MV,

          Passing legislation repealing a bad law is very different from breaking the law. Having a discussion/debate on something this complex is hard when you begin with the premise that those who oppose you are idiots – or criminals.

          If I were to take your approach I would call Harry Reid a criminal for never allowing a Senate vote on any of the 40 votes to repeal – what is he afraid of?

          But imperfect as it is our system works pretty well most of the time…

          And remember for a number of years prohibition was “the law of the land”

          • Jonathan and Lonley,

            I think he means breaking as in dismantling the law via 30-some straight repeal votes, as opposed to improving it. You know, like how MV put breaking and improving as contrasting verbs in the sentence he wrote…

            • Except that the “improvement” he noted (delaying the employer mandate for one year) was exactly what the bill in question did. So I’m not sure how it’s “dismantling” the law to delay the employer mandate for a year, if the President’s unilateral decision to do the exact same thing was “improving” it. The bill simply authorized the President to do something he already said he was going to do.

              His argument that the bill also delayed the individual mandate is simply false. Which anyone would know, if they bothered to actually read the bill.

    • You could also start by comparing this editorial to another one published yesterday by the WSJ editorial board on the FISA process: http://online.wsj.com/article/SB10001424127887324522504579005692840544038.html

      Executive power appears to be extremely fungible over at the WSJ.

      • But it is even more fungible at the White House IMHO

        • Not really though. Thinking you have the power to do something and now choosing to curtail their exercise of that power (which seems to be their position on domestic intelligence collection) is different than thinking you don’t have the power to do something (which appears to be the WSJ’s interpretation).

    • President Obama threatened to veto legislation authorizing this delay by saying it was unnecessary…

      • A clever trick by the GOP, to submit two bills and rhetorically link a delay in the employer mandate to a proposed delay in the individual mandate. Thus putting Congressional Dems into the position of explaining why delaying one makes sense and the other doesn’t- something which is true, but takes a few sentences to explain & only a few words to attack. Plus it puts the Dems entirely on the defensive.
        So Obama, who isn’t facing another vote, steps in to help them out by saying he’ll veto both bills. He doesn’t want the one and doesn’t need the other, and his executive action is not less valid for refusing a Congressional patch.

        I guess I don’t see the point in pretending to fall for the rhetorical trick though. Yes, a clever play by the House GOP, but purely from a political perspective. They haven’t actually exposed a Constitutional flaw, and until they (or the WSJ even) chooses to grapple with the actual legal arguments etc in play, I think dismissing it all as a rhetorical exercise is the appropriate thing to do.

    • But we’re not in a normal atmosphere around here when it comes to “Obamacare.” We did have the executive authority to do so, and we did so.
      Maybe the ACA law will be a lesson learned for future Presidents that Single Party Dictates of Laws with out consultation and input will always lead to push back.