Federal Law is not a Buffet: Why Delaying Obamacare’s Employer Mandate is Illegal


Last week, the Obama Administration delayed the (Un)Affordable Care Act’s employer mandate until 2015. Done largely to avoid the economic and other consequences that would result in devastating losses in the 2014 election, it was also done illegally. Consider:

And the Employer Mandate is mandatory. The law Congress wrote explicitly commands that this provision takes effect in January 2014. The ACA does not permit the government to grant a reprieve or an extension.

Yet in a blatantly illegal move, the Obama administration is presuming to rewrite the ACA by choosing not to enforce provisions that are causing visible problems. The IRS—which is tasked with enforcing the Employer Mandate—will simply not enforce it until 2015. Every large employer in the country is under the mandate. If they don’t comply, then they are breaking federal law.

But the IRS not enforcing Section 1513 is like a policeman who patrols a stretch of road who says for the next year, he won’t issue any speeding tickets. He has no authority to suspend the law, but if he chooses to violate his duty by failing to enforce the law, then to all the motorists on the road it’s as if the law does not exist.

The job of the executive branch is to execute laws passed by Congress. It does not get to pick and choose what laws to enforce. Remember prohibition? Even after Congress announced their intent to repeal the intensely unpopular law, the President had to enforce existing law until Congress repealed it via amending the Constitution. For the executive branch of the federal government – commanded by one person – to enforce selective laws by personal preference is de facto dictatorship. The current President is no stranger to this tactic with his unwillingness to enforce immigration laws. So far Congress has not been willing to use their Constitutional powers against him.

The delay will also be expensive, since it gives businesses the ability to shift workers onto the taxpayer-funded exchanges.

Republicans may not do a whole lot about this, though. While at least one House Committee is investigating the delay, the Washington Examiner cites a GOP Senate aide who notes there are two options for Senate Republicans to respond to the delay. The first is to note how this delay shows the unworkability of Obamacare. However, that would show support for Obamacare’s implementation.

The other option is to vote for the delay in Congress, thus making it a legal option. However, the aide noted this will allow red-state Democratic Senators vulnerable in the 2014 elections to claim they opposed at least part of Obamacare. For political reasons, Republicans definitely don’t want this option available.

Of course, this is the problem with politicians; rather than focus on what is right, just, constitutional, and legal, they focus on politics. President Obama is pushing the mandate past the 2014 elections, and now the GOP isn’t sure if it wants to argue against or for the delay, again because of the 2014 elections.

Personally, I fail to see why the two are considered mutually exclusive. It shouldn’t be difficult to note the illegal postponement of the mandate while still decrying the obvious difficulties this overly complex law faces. To quote former President George Bush – who was talking about his support for amnesty, but it still applies to the employer mandate delay – “Good policy yields good politics as far as I’m concerned.”

Opposing illegal actions while decrying the bigger picture problems is good policy and good politics. It’s time the GOP learned to walk and chew gum at the same time.