Rep. Becerra: If Obama Were Acting Unconstitutionally, 'Someone Would Have Sued by Now'

By Susan Jones | February 17, 2014 | 6:15am EST

Rep. Xavier Becerra (D-Calif.) (AP File Photo)

( - In unilaterally delaying Obamacare's employer mandate to 2016, President Obama "is simply providing small businesses with the flexibility they need to be able to start adopting the law," Rep. Xavier Becerra (D-Calif.) told "Fox News Sunday."

"So if this were against the Constitution, someone would have sued by now, and the president would have had to stop."

Becerra, who chairs the House Democratic Caucus, said President Obama is "just trying to make things work" despite an intransigent Congress:

"If you were going around Congress to rewrite law, that would be different than trying to use the flexibility you're given by the Congress to execute the law," he said.

"The president is not trying to rewrite. The president has never said I'm going to go it alone. The president said I'm going to work with Congress, but where Congress decides not to act -- remember, this is the -- perhaps the great(est) do-nothing (Congress) we've seen. You have a Republican speaker who said he will not -- he will be the brick wall that will not permit the president to act.

"So the president's trying to implement the law."

As previously reported, the plain language of the Affordable Care Act says that employers with “at least 50 full-time employees” must provide “minimum essential coverage” in the “months beginning after December 31, 2013” or pay a fine. But on Feb. 10, 2014, the Obama administration’s Treasury Department issued a regulation saying this part of the law no longer applies.

The Feb. 10 regulation says employers with between 50 and 99 employees need not provide coverage until 2016 and larger employers need only provide coverage to 70 percent of their employees next year.

The employer mandate "will begin after December 2013," Becerra said. "The president said we'll start it after 2013, but we're going to make sure it works well for small businesses. And the fact that -- what he's trying to do is make things work. When Congress can't pass bills, when Congress shuts down the government, the president can't just sit there...If we have an emergency, the president is just supposed to sit there? If we're -- if we're in a national security --"

But there is no national security emergency, "Fox News Sunday" host Chris Wallace told Becerra.

"Well -- but you never know if something might happen if we just started -- (inaudible).

"We're not talking about a foreign threat here, sir," Wallace repeated.

"I would hope that the -- we would never have a chief executive who would twiddle his thumbs because Congress can't its act together. We need to move. We need to move," Becerra responded.

Appearing on the same program, Sen. Mike Lee (R-Utah) said President Obama does not have broad authority under the tax code to change the Affordable Care Act's deadlines.

"Look, if that kind of broad regulatory mandate buried somewhere within the Internal Revenue Code can authorize the president to do what he's purporting to do here, then there's almost no limit to his authority, and we have a government of one; we have a super-executive and super-legislator vested in the president of the United States.

"That is of course not what we have, as any high school civics student can tell you. The president knows this is wrong, and it's not defensible. He's violating the Constitution. He's exercising power that doesn't belong to him. It belongs to the American people," Lee said.

Lee also said it would be "very difficult" to successfully sue Obama for unilaterally delaying the employer mandate.

"First of all, as to taking him to court, there are many instances in which the president might violate the Constitution but in which -- for a variety of practical reasons and some constitutional reasons -- the courts might not end up exercising jurisdiction over that case.

"It's very difficult, for example, for someone to challenge in court the president's suspension of the employer mandate. It's difficult to identify the kind of plaintiff that would suffer the kind of injury, in fact, that's particularized to the plaintiff so as to be able to establish Article III standing in court."

Lee called Obama's  move a "shameless power grab that is designed to help the president and his political party achieve a particular outcome in a partisan election.  And that's wrong," Lee added.

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