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.

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