## Under what executive authority does the President have to delay the employer mandate?

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Obama was asked this question back in July, but seemed to sidestep it.

NYT: People questioned your legal and constitutional authority to do that unilaterally -- to delay the employer mandate. Did you consult with your lawyer?

This question stems from a decision in July to delay the employer mandate.

Second, we are giving businesses more time to comply. As we make these changes, we believe we need to give employers more time to comply with the new rules. Since employer responsibility payments can only be assessed based on this new reporting, payments won’t be collected for 2014.

The House, not believing that the Exeutive Branch has the authority to rewrite legislation passed H.R. 2667 Authority for Mandate Delay Act which would delay the mandate for businesses, and H.R. 2668 Fairness for American Families Act which would delay the individual mandate.

The presidents threatened to veto both H.R. 2667 and H. R. 2668

Then again, during President Obama’s August 9, 2013, news conference at the White House (Full audio and transcript here), he was asked the following question:

Q: OK, thank you. I want to ask you about two important dates that are coming up. October 1st, you're going to implement your signature health care law. You recently decided on your own to delay a key part of that. And I wonder, if you pick and choose what parts of the law to implement, couldn't your successor down the road pick and choose whether they'll implement your law and keep it in place?

With respect to health care, I didn't simply choose to delay this on my own. This was in consultation with businesses all across the country, many of whom are supportive of the Affordable Care Act, but -- and who -- many of whom, by the way, are already providing health insurance to their employees but were concerned about the operational details of changing their HR operations if they've got a lot of employees, which could be costly for them, and them suggesting that there may be easier ways to do this.

Now what's true, Ed, is 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. It has to do with, for example, are we able to simplify the attestation of employers as to whether they're already providing health insurance or not. It looks like there may be some better ways to do this. Let's make a technical change 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, quote- unquote, "Obamacare."

We did have the executive authority to do so, and we did so. But this doesn't go to the core of implementation.

So, under what executive authority grants the President the power to delay the employer mandate by a year as H.R. 2667 would do?

(1) REPORTING BY EMPLOYERS- Section 1514(d) of the Patient Protection and Affordable Care Act is amended by striking December 31, 2013' and inserting December 31, 2014'.

(2) REPORTING BY INSURANCE PROVIDERS- Section 1502(e) of the Patient Protection and Affordable Care Act is amended by striking 2013' and inserting 2014'.

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None, the Executive Branch has no authority to write legislation.

Article One, Section 1 grants Congress the power to write legislation.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This vesting clause, along with the Executive and Judicial Branches deliniates a clear separation of powers in the federal government.

There have been some exceptions, such as in the case when the law is unclear, as in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc..

(1) "First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

This clearly isn't the issue with the employer mandate in the Patient Protection and Affordable Care Act, since I clearly states when it is to take effect.

[Section 1514 REPORTING OF EMPLOYER HEALTH INSURANCE COVERAGE] [...] (d) Effective Date- The amendments made by this section shall apply to periods beginning after December 31, 2013.

Unconstitutionality also can't be a reason, as Obama explained in this open questions round-table in 2011:

MR. LERNER: Mr. President, on the Defense of Marriage Act, also called DOMA, this comes from Kevin in North Carolina. He says: I'm a gay American who fell in love with a foreigner. As you know, due to DOMA, I'm not permitted to sponsor my foreign-born partner for residency. And as a result, we are stuck between a rock and an impossible situation. How do you intend to fix this? Waiting for DOMA to be repealed or struck down in the courts will potentially take years. What do binational couples do in the meantime?

THE PRESIDENT: Well, we made a decision that was a very significant decision, based on my assessment of the Constitution, that this administration would not defend DOMA in the federal courts. It's not going to be years before this issue is settled. This is going to be settled fairly soon, because right now we have cases pending in the federal courts.

Administratively, we can't ignore the law. DOMA is still on the books. What we have said is even as we enforce it, we don't support it, we think it's unconstitutional. [...]

The executive has a certain amount of prosecutorial discretion (see, for example, Obama's policy on marijuana). Could the executive just decide not to enforce the employer mandate? – Publius – 2013-10-07T07:16:39.370

Is it also possible, for example, that the law explicitly gives the executive branch the power to determine the timing here? I just think there are a few more possibilities you need to consider. – Publius – 2013-10-07T07:17:43.767

@Avi, you are welcome to comb the PPaACA to show where, "the law explicitly gives the exeutive branch the power to determine timing," but posting this comment with the conditional "Is it possible" hardly seems as a genuine attempt to improve the answer. Do you seriously believe that if the law explicitly gave the executive the power of when to enforce that provision of the PPaACA that the president would still have answered above, "in a normal political environment [...] Let's make a technical change of the law."

– user1873 – 2013-10-07T12:55:59.460

@Avi, you could choose to use the testimony of the Treasury's J. Mark Iwry (video here), but I wouldn't becuase his argument is bunk, "The transition relief provided in this notice is an exercise of the Treasury’s longstanding administrative authority under the tax code"

– user1873 – 2013-10-07T13:33:52.633

To build on @Avi's first question (which is good), it's entirely possible the "delay for a year" is actually just a "delay of enforcement" - he's not changing the law, just choosing not to enforce it. Same result, but potentially stronger legal ground. – Bobson – 2013-10-07T14:43:22.473

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@Bobson, You say it is a good point, perhaps you should post an answer that supports that position, so that others can judge its merits. Are you claiming the President can choose not enforce a law? That is an interesting legal position.

– user1873 – 2013-10-07T15:10:15.220

@user1873 - Honestly, I don't know, and don't have time to research it right now (hence the comment). I would expect that he has some amount of leeway, but I don't know if it's enough to cover this. If Avi wants to post it as an answer, I'll happily vote/comment on it. – Bobson – 2013-10-07T15:57:41.313

I don't have an answer, nor am I stating that user1873 is wrong. I just think that, if he's listing the ways that Obama isn't justified in delaying the law, he needs to include one or two other possibilities. – Publius – 2013-10-07T18:30:59.403

The executive branch didn't rewrite any laws, it's just using prosecutorial discretion. – Keshav Srinivasan – 2013-12-02T17:02:18.407

1The President takes the following oath on inauguration day: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. Article 2, Section 3 of the Constitution states that the President "shall take Care that the Laws be faithfully executed." When he chooses to unilaterally "delay" enforcement of a duly enacted law, he is willfully breaking his oath IMHO. – Matt Davis – 2013-12-21T09:22:14.830

If agencies are unable to fully implement the laws, as written, there is often an "official" delay. What if the president doesn't officially delay it, and they simply weren't able to get it up and running on time, with all the specific bells and whistles? No difference at all. This is a common action, and is in no way unconsitutional. The responsibility for executing the laws falls under the executive branch, and this is part of trying to fully execute the laws to the best of their abilities. They also sometimes do this because those affected need more time to prepare, as was the case here. – PoloHoleSet – 2016-11-14T15:07:17.847

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The reason why the president has the authority to delay provisions such as the employer mandate is because the Affordable Care Act says he does.

Or more specifically, it says that the Secretary of the treasury does, and the secretary of the treasury , being a member of the president's cabinet, is a proxy and advisor for the president.

Here's a sample of the first provision of Section 1502

Every person who provides minimum essential coverage to an individual during a calendar year shall, at such time as the Secretary may prescribe, make a return described in subsection (b).

Here's a link to a version of the affordable care act:
http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr.pdf

You'll see that it is filled with things regarding what the secretary is allowed to do.

In short, the President Isn't actually changing the legislation. He's just executing authority that the legislation itself says he has.

0

This is a question full of endless possible directions, and there is only one answer for some people; I am one and for me, that answer is that 'there is no authority, in short.'

See Article I of the Constitution of the US.

Generally and loosely speaking, under strict constructionism, the constitution is read in a declarative manner, as if nothing had ever been declared before. In a manner of speaking, dump all prejudices, and wipe the slate clean. As such, if the constitution says something is permissible, then it is permissible. Most importantly, the absence of a declaration and/or of a permission means that something is not permissible.

Read the Constitution all the way through as such, and do some war-gaming and you'll find this is a pleasant construct that will suit your sensibilities and your ends. (I don't even know them.) Even better, read the actual document (A JPEG on wikipedia) and look for where certain words are capitalized, for example. I see these as a point of emphasis, if you want to delve deeply into semantics.

Now of course we are all human, and a document or an algorithm would never be run perfectly of course, so the courts can come along and make legitimate mistakes, or they can simply do their best and there is no better...

Whatever the case may be, it is also important to look toward the courts and their reasoning.

However, do not do this without first getting a firm grip on how you would feel if the Constitution were a billion-dollar/life-death contract between you and a rival. Add an element of honor and self-pride to this metaphor, because we don't want it to sound despicable on your end at least.

Concerning the courts, I can only say there are a lot of cases to look through. Just beware that one minor case in the 19th century can snowball into a devastating one today. Sometimes it is hard to decide if a Judge was being derelict in his duty, or perhaps he was going on precedent. (However bad that precedent may be.)

The most important thing: It is up to you. The Constitution is yours. There are more technical things in the law, like who gets what patent or how we draw boundaries over water, but the fundamental law should and in fact is open to almost anyone. Do not let anyone encroach on that.

The question stated: "Under what executive authority does the President have to delay the employer mandate?"

There is no "who" to which I could specifically reference about "tweaking", an action not expressed either. The executive has no such authority to "delay" a law, and I explained as a way of covering my butt, that there are people in the world who are not of like mind with me.

I'm sorry if this was difficult to understand, but as to the referencing issue, there is nothing to reference unless the constitution is not common knowledge. – Mr. A – 2013-10-06T03:51:56.690

Perhaps perhaps perhaps. You could try all of those things, but then I might still wonder "why cannot the congress do that; can you give me a case about why cannot the congress give the power to the executive? Then you might give me a case, and I might ask, why can the Judicial branch deny the congress the power to give the executive the power; can you give me a case?; Can you cite history?; Why is your guy right and his wrong?; This is why I said this has "endless possible directions" so I intentionally stated (more or less) that this was my theory and avoided all uncommon reference. – Mr. A – 2013-10-06T15:01:54.213

Calling upon the judiciary can be a circular chain of reasoning. Just as people say "God exists because the bible said he does, and God wrote the Bible" is a circular fallacy, so too is it fallacious to say "The Judiciary is the authority on correctness, because they wrote the opinions, and the opinions say they are the authority." – Mr. A – 2013-10-06T15:05:46.450

But if you want to write the authoritarian theory as to who has the power I don't agree exists, be my guest. It would be against my general principle to cite the courts in this question, particularly anything after 1870 or so. Anyone can read the constitution, just like anyone can read the rules to Monopoly(R) – Mr. A – 2013-10-06T15:07:50.320

I shouldn't have used the word "theory" or the word "my" before it, but you've sucked me into defending that which should require no defense, turning answer into defense. The thoughts expressed in my article are generally held by a large segment on people, including a school or schools of "experts." To decide that one needs to point to an expert on the constitution, would be to totally ignore this school which posits that no experts are required or encouraged to be. I did not say that "no one was right." I said that there is no such power. This is so easily deducible, a layman could... – Mr. A – 2013-10-06T16:37:44.397

answer his own question. That monopoly example you pointed toward makes my point perfectly. In monopoly there are rules, and then there are "gentlemanly agreements" where the rules inevitably allow for the possibility of dirty-tricks. Lay people come up with the house rules, and they can easily know when to come up with them by reading the official rules. – Mr. A – 2013-10-06T16:40:24.067

*By easily deducible, I don't mean it will take a few seconds of time to reach the correct conclusion. Easily here is not a measure of time. – Mr. A – 2013-10-06T16:41:42.527

If someone asked what is the meaning of "Politics"?; And I answered with a citation of the Dictionary, would you say "nono, that's not good. You must tell my why the dictionary said that, and you must tell me who came to that conclusion, and who died and made him king?" The only possible problem here is with the question itself; that it isn't suited toward a stack question. Perhaps this site should be built a little differently than Overflow and Math. – Mr. A – 2013-10-06T16:49:12.030

Why should I? If he asks, "Is there water in this cup", is it not sufficient for me to say "No", or must I find another cup that has water too? If he asks "Is this swan black", is it not enough to say "No", or do I have to go and find his black swan? – Mr. A – 2013-10-06T17:28:55.287