The President On The Constitutionality of Delaying The Employer Mandate

July 30th, 2013

In a recent interview in the Times, the President is asked about the constitutional authority to delay the mandate. He seems to duck the issue of whether his lawyers told him that it was constitutional to delay the implementation of the mandate (I wonder if there is even an OLC opinion here).

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

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security —

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

He then disparages those who have criticized him for doing so–noting that they aren’t lawyers, or gasp, constitutional lawyers:

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so. And I would hope that more and more of Congress will say, you know what, since that’s our primary focus, we’re willing to work with you to advance those ideals. But I’m not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

Update: Here is the entire transcript:

MR. OBAMA: Well, this was a very practical decision that actually doesn’t go to the heart of us implementing the Affordable Care Act. The majority of employers in this country provide health insurance to their employees. And the number of employers who are potentially subject to the employer mandate is relatively small.

The way the law was originally written, it did not take into account the fact that we don’t necessarily need to load up the vast majority of companies that are already doing the right thing with a bunch of additional paperwork; are there simpler ways for us to allow them to certify that they’re providing health insurance? And if they do that, then the purpose, the spirit of the law is met, and we can concentrate on the few bad actors who are unwilling to provide health insurance to their employees even though they can afford it, and they’re relatively large employers.

And businesses came to us and said, listen, we were supportive of providing health insurance to employees, in fact, we provide health insurance to our employees; we understand you want to get at the bad actors here, but are there ways to provide us some administrative relief? And what we said was, given that that is not critical to standing up the marketplaces where people are going to actually be able to buy lower-cost, high-quality insurance and get the tax credits that make it affordable for them, we thought it made sense to give another year not only for companies to prepare, but also for us to work with Treasury and others to see if there are just ways we can make this a little bit simpler for companies who are already doing the right thing.

This is the kind of routine modifications or tweaks to a large program that’s starting off that in normal times in a normal political atmosphere would draw a yawn from everybody. The fact that something like this generates a frenzy on Republicans is consistent with the fact that they’ve voted to repeal this thing 38 times without offering a alternative that is plausible. And from what I understand, based on recent reporting, they’ve just given up on offering an alternative.

So essentially — their central economic plan that they’re currently presenting involves making sure that 50 million Americans cannot get health insurance; that people with preexisting conditions are potentially locked out of the market; that the rebates that people have received from insurance companies are sent back; that young people who are right now on their parents’ plan because they’re 26 or under, that they suddenly don’t have health insurance. I do not understand the argument that that somehow grows the economy or strengthens the middle class.

And during the course of implementation, are there going to be some glitches? Are there going to be some complaints from employers who are still trying to figure it out and may not know what subsidies are available to them? Absolutely. Are there some folks who may say, we’re going to try to figure out ways not to provide health insurance to our employees? Yes. But that’s a small proportion of our overall economy, and the principle that everybody should be able to get health insurance is one that the vast majority of Americans agree with.

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

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security —

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so. And I would hope that more and more of Congress will say, you know what, since that’s our primary focus, we’re willing to work with you to advance those ideals. But I’m not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

NYT: Polls this week have shown your health care law has lost support. What are you going to be doing to build support?

MR. OBAMA: We’re going to implement it.