Ever since the administration announced that enforcement of the employer mandate portion of Obamacare would be delayed a year, the debate over what that means has grown increasingly heated.
It's easy to make a case that the administration is in trouble on this one. Start with the way the press on it was handled. The White House press operation is extremely savvy, and their announcement of this move was deliberately designed to attract as little attention as possible. It came just before a holiday weekend, when readership and viewership were low. It was in the form of a blog entry written by a minor official who works outside of the White House. Although the decision to do it had been made months before, it was held until the media was fully engaged with high octane news stories from the Middle East. This is a perfect example of a "stealth disclosure" of a major event, carefully designed to attract as little attention as possible.
However, that didn't work — it seldom does — and the issue quickly achieved high profile status, with most of the discussion being simply a rehash of previous arguments about the original legislation. President Obama's critics have been repeating their previous complaints about the law while administration apologists respond by listing all of the good things they say are still in it. This "re-debate" of whether or not Obamacare is good policy distracts from the main issues arising from this announcement.
Can a president really do this on his own authority? Michael McConnell, a former federal circuit court judge who taught law at the University of Utah and was under consideration for the Supreme Court, says, "no." He writes that the Constitution requires a president to "faithfully" enforce all congressional acts, regardless of his opinion of their wisdom. The effective date of the employer mandate is in the law and the president has no right to ignore that fact.
Consider the consequences if such an action becomes a precedent which is allowed to stand. Future presidents could pick and choose which acts to enforce and which to ignore, giving them a de facto veto over all legislation, one which Congress could not override. McConnell's argument is particularly ironic in this case since President Obama seeks to ignore a provision of an act he himself claims as his most important legislative accomplshment.
Next, consider also the practical implications of this action. Does the administration's inability to perform on part of the act signal an inability to implement the rest of it?
Maybe. I noted in a previous column that the exchanges also will not be ready on time, causing Sen. Max Baucus, D-Mont., one of the act's principal authors, to say that implementation will be "a train wreck." Many experts who are familiar with the difficulty of putting complicted federal programs in place are saying that the inability to meet the deadline on the employer mandate is part of a larger pattern of events that could bring about the collapse of Obamacare altogether.
So this announcement is not about health care ideology. Rather, it suggests a crisis in management, just as polls are showing that the law is becoming more and more unpopular with the public. If the administration really needs more time to sort things out, it should stop using "stealth disclosures" and tell us its problems straight out. Candor and specificity are needed to get this car off the rails before trains collide; the president himself should outline just what additional time and resources he needs and then openly ask Congress to amend the law accordingly.
Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.