Congress Debates if Obama Could Unilaterally Delay Employer Mandate

Fred Lucas | July 24, 2013 | 10:09am EDT
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Health and Human Services Secretary Kathleen Sebelius and President Barack Obama. (AP)

( – Members of Congress debated whether the Obama administration had the authority to postpone implementing the employer mandate portion of Obamacare by one year without approval from Congress.

“There are a number of questions that need to be answered. For example, does the president have the authority to unilaterally delay enforcement of the law?” Rep. Phil Roe (R-Tenn.) said Tuesday during a joint subcommittee hearing.

“It is well recognized a president can decide not enforce a law he believes is unconstitutional,” Roe continued. “Yet there is nothing in the president’s decision to suggest he believes the employer mandate is unconstitutional. Quite the opposite.

“President Obama signed the bill into law, and his Justice Department defended the law before the Supreme Court. Can a president disregard the law because it’s politically inconvenient or the federal bureaucracy is running behind schedule?” he added.

Individuals will not get the same waiver as employers, as the individual mandate takes effect in January 2014.

Rep. Joe Courtney (D-Conn.) challenged the notion, citing findings from the Congressional Research Service, asserting the Internal Revenue Service made a “common sense decision” after soliciting comments from employers across the country.

“I would encourage all of my colleagues to pick up the phone and call the Congressional Research Service and ask them if the IRS has the authority to postpone statutorily defined programs,” Courtney said. “The fact of the matter is that four times in recent years – the last few years – the IRS has postponed the implementation of IRS programs, some under the Bush administration, and some under the Obama administration.”

The House Committee on Education and Workforce held a hearing with both the subcommittee on Health, Employment, Labor & Pensions and the subcommittee on Workforce Protection.

The hearing was to examine the July 2 announcement by the Obama administration that the portion of the Patient Protection and Affordable Care Act requiring employers to provide health insurance to employees be postponed to Jan. 1, 2015. The mandate was supposed to take effect a year earlier.

The rule applied to employers with 50 or more employees and carried a fine of $2,000 per employee. The law defines full-time employee as someone who works 30 hours or more per week. The Congressional Budget Office estimated employers would pay $140 billion in penalties over the next 10 years and that some employers would reduce the number of workers to avoid the mandate altogether.

Obama administration officials have been mum on the matter.

The committees invited Howard Shelanski, administrator for the Office of Management and Budget’s Office of Information and Regulatory Affairs, but the agency declined the invitation, asserting OIRA had no role in the decision-making.

Centers for Medicare & Medicaid Services Administrator Marilyn Tavenner told the House on July 17 that she was not consulted on the decision to delay the mandate. Further, Treasury Deputy Assistant Secretary for Retirement and Health Policy Mark Iwry told the House he was not part of the decision-making process.

The House voted 251 to 174 to delay the individual mandate, with 22 Democrats joining the Republican majority. The House also voted 264 to 161, with 35 Democrats joining the GOP, to delay the employer mandate, which Obama already did. However, the White House threatened to veto both bills.

“The administration said in a puzzling statement of Administration Policy that the president would veto the legislation that would delay the mandate that he himself is delaying by administrative directive,” Grace Marie Turner, president of the Galen Institute, a free market health care think tank, told the House panel.

The Galen Institute favors total repeal of Obamacare.

However, Ron Pollack, executive director of the liberal group Families USA, argued that too much was being made of the employer mandate delay.

“The consternation that this delay has caused from some quarters is much ado about very little,” Pollack told the panel. “The Obama administration chose to give business an additional year to comply with reporting requirements in response to feedback from business that the requirements were too complicated and that they needed additional time to comply.

“The administration has concluded that employers would simply not be able to implement the requirements of the law at this time. Businesses have responded favorably to the delay. Historically, both Democrat and Republican administrations have sometimes delayed implementing legislation due to time constraints, which appears to be the case here.”

The employer mandate is harmful to businesses, job growth and the economy, so it almost doesn’t matter when it is implemented, said Douglass Holtz-Eakin, a former director of the Congressional Budget Office, now the president of the conservative group American Action Forum.

“The employer mandate is a key failing of the law, as it will not actually compel employers to add coverage, and it depends on the complicated reporting and information system that the administration was unable to implement in the three years since the law passed,” Holtz-Eakin said.

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