Bagley on the Legality of Delaying the ACA

April 18th, 2014

Nick Bagley, who kindly  commented on my book talk at UMichigan, has a piece in the New England Journal of Medicine explaining in a concise manner the legality of the myriad delays to Obamacare:

For several reasons, however, the recent delays of ACA provisions appear to exceed the scope of the executive’s traditional enforcement discretion. To begin with, the delays are not “discretionary judgment[s] concerning the allocation of enforcement resources” that, per Heckler, are at the core of the executive branch’s power to decline to enforce laws.2 Instead, they reflect the administration’s policy-based anxiety over the pace at which the ACA was supposed to go into effect. The mandate delays, for example, were designed to “give employers more time to comply with the new rules.”3 Similarly, the postponement of the insurance requirements aims to honor the President’s promise that “if you like your health care plan, you can keep it.”

To sharpen the point: even if the administration lacked the capacity or desire to take action against those who failed to comply with the ACA, it could have remained silent about its enforcement plans. Most employers and insurers would still have felt obliged to adhere to the law. Because the administration wanted to relieve them of an unwanted burden, however, it publicly committed itself to nonenforcement, thereby licensing employers and insurers to disregard the ACA’s terms.

Encouraging a large portion of the regulated population to violate a statute in the service of broader policy goals — however salutary those goals may be — probably exceeds the limits of the executive’s enforcement discretion.4 The U.S. Court of Appeals for the D.C. Circuit has said that “an agency’s pronouncement of a broad policy against enforcement poses special risks that it has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.”5 The ACA delays appear to be just such broad — and worrisome — policies.

The administration’s legal claim is strongest in defending the employer-mandate delays. The Internal Revenue Service (IRS) has an established practice, stretching back at least three presidential administrations, of affording “transition relief” to taxpayers who might otherwise struggle to comply with a change in the tax code. In the administration’s view, that practice confirms that the IRS’s general authority, per the Internal Revenue Code, to “prescribe all needful rules and regulations” to run the tax system includes the specific power to delay the effective date of new tax laws.

This is a plausible argument. The persistence of the IRS practice is some evidence that Congress has, by declining to rebuke the agency, acquiesced to its view that it can properly use its enforcement discretion to delay tax statutes. Extensions of transition relief, however, have typically been brief — usually just a few months — and covered taxes of marginal importance that affected few taxpayers. In 2007, for example, the IRS gave tax preparers an extra 6 months to plan for enhanced statutory penalties that would apply if they improperly filled out tax returns. Such examples provide slim support for a sweeping exemption that will relieve thousands of employers from a substantial tax for as long as 2 years.

Bagley closes with an important point–a future President unsympathetic to Obamacare can delay or postpone provisions as means to frustrate the law.

The delays nonetheless set a troubling precedent. They are unlikely to be challenged in court — no one has standing to sue over the employer-mandate delays, and no insurer has thought it worthwhile to challenge the “like it, keep it” fix. But a future administration that is less sympathetic to the ACA could invoke the delays as precedent for declining to enforce other provisions that it dislikes, including provisions that are essential to the proper functioning of the law. The delays could therefore undermine the very statute they were meant to protect — and perhaps imperil the ACA’s effort to extend coverage to tens of millions of people.

More generally, the Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’s ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them.

H/T Jon Adler