J. Scott Applewhite, AP
The Obama administration kicked up a hornets nest over the July Fourth weekend, when it quietly announced on a Treasury administration blog that the controversial employer mandate was being delayed until 2015, after the 2014 midterm elections.
Republican House leaders announced on Friday they would hold votes next week on a measure to delay the individual mandate, as well as formalize (and legalize) the delay of the employer mandate.
“The president delayed Obamacare’s employer mandate, but he hasn’t delayed the mandate on individuals and families,” Boehner said Thursday, according to Politico. “This is unfair, and it is indefensible.”
Some questioned whether the move was even legal, but the administration treated it as routine administrative discretion.
“People who suggest that there’s anything unusual about the delaying of a deadline in the implementation of a complex and comprehensive law are deliberately sticking their heads in the sand or are just willfully ignorant about past precedent,” said White House Press Secretary Jay Carney, the New York Times reported.
Stanford Professor Michael McConnell focused on the (il)legality of the move, asserting flat-out that the president lacked the authority to suspend or delay the law.
"The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that 'the amendments made by this section shall apply to months beginning after December 31, 2013.' Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of Obamacare."
Or as Milton Wolfe put it in the Washington Times, "With the delay, however, President Obama has declared that he is not bound by mere law. All he is missing are mirrored sunglasses and a big military hat."
But beyond the legality, other critics are focused on the practical difficulties. The employer mandate delay, notes Daily Beast analyst Megan McCardle on her personal blog, derails the mechanism to assess eligibility for subsidies, making it possible for huge numbers of people to obtain large subsidies on the taxpayer tab, even if they don't qualify.
And the way the law is written, she continues, eligibility must be be determined at the front end and the subsidies awarded. Without the employer mandate, this is not possible.
"The alternatives are to delay the whole bill, or resign ourselves to hemorrhaging wads of cash," McCardle continued. "The IT expert’s instinct to hold things together with some inelegant intermediate kludge won’t work. All the elements of the law are so tightly coupled that pulling one out makes the whole machine go haywire."
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