Recall Vice President Biden’s "accidental" aside that Obamacare was a "Big F#*&ing Deal" by which he meant an historic act of beneficence that brought our country into the civilized world. It turns out that the law is apparently so good that it will not be implemented until the President is out of office.
Last week’s decision to delay the employer mandate – a feat that is apparently so complex that it could not be accomplished in a mere three years - was stone cold illegal. The Affordable Care Act leaves no wiggle room about the employer mandate, providing that its requirements "shall apply to months beginning after December 31, 2013." The administration, apparently not into the whole "rule of law" thing, has offered no legal justification for its action.
Louis Bagley, a law professor from Michigan, argues that the delay just might be justified by a provision in the law that says the Secretary of Treasury can decide when the mandated employer reports must be filed. In his view, this could mean "not until 2015." Once the requirement to report is delayed, he continues, there can be no penalties imposed for failing to offer the mandated coverage because the government won’t have any way to know who did and did not offer insurance.
In this, Professor’s Bagley reminds one of Billy Flynn tap dancing around his client’s obvious guilt in Chicago. The argument proves too much. The ability to decide when a report may be filed does not mean that one can excuse the requirement that it be filed or eliminate the mandatory penalties that must be imposed if ther equired coverage has not been offered. If Professor Bagley were right, then a Republican President could just as well delay reporting until the 12th of Never and thus unilaterally eliminate the employer mandate.
This is hardly a matter of legal technicality or, as President Obama will almost certainly call it, a "distraction" to his project of avoiding disaster in the 2014 midterms. As Professor Michael McConnell aptly explained in Tuesday’s Wall Street Journal, the Constitution requires that the President "take care that the Laws be faithfully executed." The Founding Fathers wanted to guard against the type of royal absolutism that had lead King James II to pick and choose among the laws he would and would not enforce. It too was a BFD.
We have always been told that Obamacare was a"market-driven" reform in which all the interlocking pieces were necessary. Remember that the Commerce Clause justification for the individual mandate was that, because the law mandates insurers to cover pre-existing conditions and engage in community rating,Congress had to force everyone to buy insurance. If it did not, the market would collapse due to the adverse selection that would occur if young and healthy people did not start forking over premiums.
The employer mandate, in turn, was said to be necessary to limit the number of people who would have to purchase individual coverage and,if their income was low enough, require government subsidies. This is why the law provides subsidies only for those who cannot get coverage from their employer and penalizes employers for each employee who receives a subsidy due to that employer’s failure to provide coverage.
Now, one of the law’s necessary features has been removed. Without the employer mandate, the law provides for no subsidies. Those too should not go into effect until 2015. Without the subsidies, millions will be unable to afford the insurance that they are now legally compelled to buy. The contraption seems about to come a cropper. In for a dime, the President should go in for a dollar and illegally delay the whole thing.
That won’t happen and here’s how. Last Friday, we learned that the subsidies are now on the honor system. Take a penny, leave a penny. Tell us you need thousands of dollars in tax credits and you’ve got them.
In so doing, the administration has effectively rewritten the law. What started as a supposedly "market- driven" three-legged stool of employer mandated coverage, an individual mandate for those who did not obtain employer coverage and subsidies for those who could not afford it has been turned into a massive game of money for nothing. That can’t last – costs will spiral out of control and the insurance market will collapse – but it can last past the 2014 elections.
Don’t expect the courts to stop this. Under current procedural rules, it is not clear that anyone will have standing to sue. A plaintiff must have suffered a personal injury and even persons employed by a business that does not offer coverage may have a hard time proving that her employer would have done so had the mandate penalties been imposed.
I’ve written here before about the extraordinary ways in which the Obama administration has ignored the rule of law. At one point, I suggestedthat our President’s view of the Imperial Presidency was Nixonian.