"...and you, sir, are no Abraham Lincoln."

[Bricker]

@Captain_Amazing

It does. The White House isn’t suspending the mandate. It’s suspending the reporting requirement, and the HHS secretary, statutorily is the one who determines when businesses have to report.

No, that’s not correct. There’s nothing in the law that authorizes such delay.

Would you care to offer the section of the law that you believe authorizes such delay?

And would you care to opine on the reaction if Romney’s HHS secretary had interpreted the law as allowing such a delay?

[Xema]

@xenophon41

The Chief Executive has, by much precedent and custom, quite a bit of liberty in the details of program implementation, especially in terms of timetable…

So you’re saying that ACA does not include a date by which the employer mandate is to be implemented? Or that if it does, Congress exceeded its authority?

[Hentor_the_Barbarian]

@Bricker

And would you care to opine on the reaction if Romney’s HHS secretary had interpreted the law as allowing such a delay?

Do you really think that’s an exceptionally helpful question?

I know two things that wouldn’t have happened. There would not have been a piece in the WSJ about it, and you wouldn’t have started a thread about it here.

[Xema]

@Captain_Amazing

The White House isn’t suspending the mandate. It’s suspending the reporting requirement…

So you believe an employer that fails to offer the mandated coverage to employees is fully subject to the mandated penalties - only the requirement to report has been postponed?

[Stratocaster]

@Hentor_the_Barbarian

Do you really think that’s an exceptionally helpful question?

I know two things that wouldn’t have happened. There would not have been a piece in the WSJ about it, and you wouldn’t have started a thread about it here.

Does Obama have the authority to render such a decision or not? Personally, I think that is an interesting and important question, and much preferable to our normal rants about, “Your guys did it, too!” or “They just think whatever Obama does is wrong!” I think invoking Romney isn’t helpful either, though IMO Bricker’s unspoken point is both accurate and unprovable. This board by and large would be apoplectic if Romney picked and chose which portions he’d execute. But that opinion doesn’t answer the question, so in the end–who cares?

This is GD, right? Perhaps we can all dispense with the logical fallacies for once? Here’s something in Krauthammer’s column (emphasis added):

Traditionally — meaning before Barack Obama — that’s how laws were changed: We have a problem, we hold hearings, we find some new arrangement ratified by Congress and signed by the president. <snip> But such niceties must not stand in the way of an administration’s agenda. Indeed, the very next day, it was revealed that the administration had unilaterally waived Obamacare’s cap on a patient’s annual out-of-pocket expenses — a one-year exemption for selected health insurers that is nowhere permitted in the law. It was simply decreed by an obscure Labor Department regulation.

Is anyone familiar with the “obscure Labor Department regulation”? Could this provide the basis for Obama’s decision that, on its face, seems otherwise to be unconstitutional?

[xenophon41]

@Xema

So you’re saying that ACA does not include a date by which the employer mandate is to be implemented? Or that if it does, Congress exceeded its authority?

I think it’s probably within Congress’ purview to put any deadlines they want into a law. But you’ll have to show me where the law contains a strict deadline by which employers must report compliance. I’m assuming it does not, for the simple reason that a) the President delayed the reporting requirement, however b) none of the “constutional crisis!” gadflies have yet cited such a deadline in the law.

[Bricker]

@Hentor_the_Barbarian

Do you really think that’s an exceptionally helpful question?

I know two things that wouldn’t have happened. There would not have been a piece in the WSJ about it, and you wouldn’t have started a thread about it here.

I dunno about the WSJ, but you’re absolutely wrong about me.

[RTFirefly]

@Bricker

The piece is pretty strongly against the legality of the President’s actions. I think it makes a good case that Obama’s actions are not, in fact, in line with a good-faith discharge of the duties of his office.

If anyone wants to take that argument to the nearest Federal District Court, there’s nothing and nobody standing in their way.

In the absence of such an action, I have to regard such arguments as high-level concern trolling.

[Captain_Amazing]

@Bricker

Would you care to offer the section of the law that you believe authorizes such delay?

“Every applicable large employer required to meet the requirements of section 4980H with respect to its full-time employees during a calendar year shall, at such time as the Secretary may provide, make a return.”

And would you care to opine on the reaction if Romney’s HHS secretary had interpreted the law as allowing such a delay?

I personally would expect it to be an attempt by Romney to sabotage the law, given Romney’s previous statements about the law. I don’t assume that the President has the same motivation.

[Captain_Amazing]

@Xema

So you believe an employer that fails to offer the mandated coverage to employees is fully subject to the mandated penalties - only the requirement to report has been postponed?

The requirement to report is fundamental to the mandated penalties, so delaying the requirement to report delays the implementation of the penalties. As was put in the announcement of the postponement.

The Administration has announced that it will provide an additional year, until Jan. 1, 2015, before the ACA’s mandatory employer and insurer reporting requirements begin. The postponement will (1) give Treasury time to develop ways to simplify the new reporting requirements consistent with the law, and (2) provide time to adapt health coverage and reporting systems. Since postponement of the reporting requirements will make it impractical to determine which employers owe shared responsibility payments under Code Sec. 4980H for 2014, transition relief is also being extended to shared responsibility payments. Any employer shared responsibility payments will not apply until 2015.

[xenophon41]

@Bricker

…There’s nothing in the law that authorizes such delay.

Would you care to offer the section of the law that you believe authorizes such delay?

Bull hockey.

Why don’t you cite the section of the law which prohibits such delay? You know as well as the rest of the commenters here that POTUS is responsible for “faithfully execut[ing]” the laws of the United States, and that such execution requires actual management of the policies required by law and of the people and agencies charged by the executive with monitoring and enforcing compliance.

[Bricker]

@Captain_Amazing

“Every applicable large employer required to meet the requirements of section 4980H with respect to its full-time employees during a calendar year shall, at such time as the Secretary may provide, make a return.”

Doesn’t that mean at such time during the year as the Secretary may provide?

I personally would expect it to be an attempt by Romney to sabotage the law, given Romney’s previous statements about the law. I don’t assume that the President has the same motivation.

So does the President’s exercise of a power depend upon his thoughts when he does it?

Here’s the real question: the Republicans may win the WhiteHouse in 2016 but not the Senate, or not have the sixty votes in the Seante to pass a bill with cloture.

@xenophon41

Bull hockey.

Why don’t you cite the section of the law which prohibits such delay? You know as well as the rest of the commenters here that POTUS is responsible for “faithfully execut[ing]” the laws of the United States, and that such execution requires actual management of the policies required by law and of the people and agencies charged by the executive with monitoring and enforcing compliance.

Can the Republican President in 2016 legally use this tactic to scuttle Obamacare? Yes or no?

[Ravenman]

Counselor – I can think of a few laws off the top of my head that have yet to be implemented. For example, the Chief Financial Officers Act of 1990 requires that every Federal agency submit annual, audited financial statements. And yet, the Department of Defense hopes to conduct its first audit next year (for which there will not be a clean opinion), and pass its first audit in 2017. Also, the Secure Fence Act of 2006 directed that 700 miles of fence along the Southwest border be constructed. As best as I can tell, only 600 miles of that fence has been constructed.

Now, the question: let’s say Congress directs that something very, very difficult to be done --how about a law is enacted which directs NASA to launch a manned mission to Mars by March 1, 2018. Since the President is charged with executing that law, what is his recourse if we learn in 2015 that it is going to take 10 more years?

I’m not sure what the answer is. But it seems to me that our system of laws has to afford the President some opportunity to both attempt to carry out the law in good faith, while also recognizing that simply by being the most powerful man on Earth, there are still things that he cannot accomplish. Surely the law cannot be so blind as to require NASA to launch a death-trap rocket in 2018, knowing full well that it is going to fail.

It’s my gut feeling that so long as the President is attempting to carry out the law, but execution by a date certain is not possible, that the law cannot be so dumb as to compel a disaster to occur simply to comply with a date. But my question to you is, is there any principle of law that exists along these lines? Or is the President bound by his solemn oath to launch that rocket in March 2018? And what if he asks Congress for an extension to the deadline to continue perfecting the rocket, and Congress (for whatever reason) does not approve that request – is the President now doubly obligated to carry out the mission within the deadline, no matter how stupid that may be? And would you see a difference between a President who is trying his hardest to make sure a safe rocket is built and the mission is successful whenever it begins, rather than a President who simply doesn’t like space exploration and would prefer to sandbag the whole thing?

[Captain_Amazing]

@Bricker

Doesn’t that mean at such time during the year as the Secretary may provide?

A strict reading of the bill would suggest that, but it depends on your interpretation, and is therefore up to the courts, isn’t it? Somebody…I don’t know who, but somebody is free to request a writ of mandamus.

So does the President’s exercise of a power depend upon his thoughts when he does it?

Of course not. I don’t think anyone would say that. (Although, who knows, there might be some law out there that takes into account intent regarding an executive power.) But my opinion of someone’s actions (whether they’re the president or anyone else) can depend on my judgment of their motivations.

Here’s the real question: the Republicans may win the WhiteHouse in 2016 but not the Senate, or not have the sixty votes in the Seante to pass a bill with cloture.

Can the Republican President in 2016 legally use this tactic to scuttle Obamacare? Yes or no?

Probably. Although, again, we’d have to see what the courts say. It’s certainly a better tactic than any the Republicans have come up with so far.

[xenophon41]

@Bricker

Can the Republican President in 2016 legally use this tactic to scuttle Obamacare? Yes or no?

Well, putting aside the fact that -barring some catastrophe- the earliest we could possibly have a Republican president is January 2017, I’d say that depends on how the hypothetical scoundrel approaches such scuttling.

For instance, only if Obama indefinitely delays the reporting requirements, or actually does suspend them entirely, then a legitimate case can be made against him (and/or HHS) because now it’s a clear avoidance of the law and any court action will probably not be in the administration’s favor.

So too with hypothetical President Fuckwit of the Republican Party. If he attempts to negate portions or the whole of the law through executive action, he should face consequences, judicially and legislatively. If, however, he makes specific implementation, monitoring or enforcement policies and directives within his prerogative as Chief Executive and which do not run counter to established law, then the options for Congress are the same as I outlined in my first post, with the addition of the choice which exists both today and in the hypothetical for anyone with standing to bring suit. Hypothetical opponents of Pres Fuckwit, and real opponents of Pres Obama are equally encouraged to use the Judicial branch to press their argument, which can at least sway public sentiment.

As I said above, God speed.

[Bricker]

@Ravenman

Counselor – I can think of a few laws off the top of my head that have yet to be implemented. For example, the Chief Financial Officers Act of 1990 requires that every Federal agency submit annual, audited financial statements. And yet, the Department of Defense hopes to conduct its first audit next year (for which there will not be a clean opinion), and pass its first audit in 2017.

Then DoD is in violation of that law. How hard is that?

Now, the question: let’s say Congress directs that something very, very difficult to be done --how about a law is enacted which directs NASA to launch a manned mission to Mars by March 1, 2018. Since the President is charged with executing that law, what is his recourse if we learn in 2015 that it is going to take 10 more years?

His recourse is to report to Congress that he can’t do it. But he’s still in violation of the law.

But my question to you is, is there any principle of law that exists along these lines? Or is the President bound by his solemn oath to launch that rocket in March 2018? And what if he asks Congress for an extension to the deadline to continue perfecting the rocket, and Congress (for whatever reason) does not approve that request – is the President now doubly obligated to carry out the mission within the deadline, no matter how stupid that may be?

In that case, it would seem that launching the rocket also puts the President in violation of laws. But again, he doesn’t do it, reports to Congress that he can’t do it, and that’s that.

But he’s still in violation of that law.

And would you see a difference between a President who is trying his hardest to make sure a safe rocket is built and the mission is successful whenever it begins, rather than a President who simply doesn’t like space exploration and would prefer to sandbag the whole thing?

Sure.

But my question, which no one has answered, remains.

[Bricker]

@Captain_Amazing

Probably. Although, again, we’d have to see what the courts say. It’s certainly a better tactic than any the Republicans have come up with so far.

Thanks for answering.

So your view would be that whatever the courts decide is the right answer?

[xenophon41]

@xenophon41

For instance, only if Obama indefinitely delays the reporting requirements…

In anticipation of possible legitimate questions from the OP, I want to clarify that “indefinite delay” would be some executive order or action which in effect directs the relevant agencies to ignore the reporting and associated enforcement requirements and does not set any requirements within the Executive branch to plan for monitoring or enforcement activities. Something like an order which states ‘We will not at this time require employers to report as required’ and which does not direct the appropriate departments to make ready to fulfill the requirements of the law.

[Ravenman]

@Bricker

But he’s still in violation of that law. . . .

Sure.

But my question, which no one has answered, remains.

So you see a difference between President A who is attempting to carry out a mission to Mars at the earliest opportunity, but cannot comply with a statutory deadline; as compared to President B who has no interest in carrying out a mission to Mars whatsoever.

Please explain what you see as the difference. Since you basically point out that President A and President B are both in violation of the law, I would assume that you would NOT see a difference. But since you do, I think you should explain why you see a difference.

[GIGObuster]

After looking around, it is clear that indeed a lot has to do with what the courts could decide, but to put matters in perspective, and to make the usual point that many opinionators of the right are letting ideology triumph precedent, I think Simon Lazarus, Senior Counsel that worked for Carter has the goods on this issue:

Delaying Parts of Obamacare: 'Blatantly Illegal' or Routine Adjustment?

So has President Obama, in fact, broken the law and abused his constitutional authority by delaying the Affordable Care Act’s “employer mandate”? This may be the top Republican talking point right now. But what does the law actually say about this?

Mostly, the heated rhetoric of the past few weeks ignores what the Administration has actually decided and how it has delimited the scope and purpose of that decision. The Treasury Department’s announcement provides for one year of “transition relief,” to continue working through 2014 with “employers, insurers, and other reporting entities” to revise and engage in “real-world testing” of the reporting requirements, simplify forms, coordinate requisite public and private sector information technology arrangements, and engineer a “smoother transition to full implementation in 2015.” The announcement describes the postponed requirements as “ACA mandatory” – i.e., not discretionary or subject to indefinite waiver. On July 9, Assistant Treasury Secretary Mark Mazur added, in a letter to House Energy and Commerce Committee Chair Fred Upton, that the Department expects to publish proposed rules implementing the relevant provisions “this summer, after a dialogue with stakeholders.” In effect, the Administration explains the delay as a sensible adjustment to phase-in enforcement, not a refusal to enforce

So, the basic problem I see is that there is a big mountain to surpass to get to the courts and then work towards making the courts agree with the blobiators of the WSJ and others, looking at the context I can tell them to take a hike now, maybe when evidence surfaces that the president is doing this with the intention to scuttle the law, but until then, bupkiss to the ones that are overreaching on this accusation.

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been “unreasonably delayed.” But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law tells courts to consider whether expedited action could adversely affect “higher or competing” agency priorities, and whether other interests could be “prejudiced by the delay.” Even in cases where an agency outright refuses to enforce a policy in specified types of cases – not the case here – the Supreme Court has declined to intervene.

As held by former Chief Justice William Rehnquist in a leading case on this subject, Heckler v. Chaney, courts must respect an agency’s presumptively superior grasp of “the many variables involved in the proper ordering of its priorities.” Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend.