Laws are for the peasants and the little people.
Latest Obamacare Delay Is Probably Illegal
So the administration is not trying to buy strapped employers more time to cover their employees. More likely, it is still struggling to set up the compliance systems that will allow medium employers to certify that they have met the mandate’s requirements, or it is worried about adverse impacts -- expensive changes to benefit plans, or employers who downsize to avoid the mandate -- ahead of the 2014 elections.
-- The delay is probably illegal. Law professor Jonathan Adler argues in the Washington Post that this latest delay -- which comes just six months after the administration delayed the employer mandate the first time -- clearly violates existing legal precedent:
Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions 'shall apply' after December 31, 2013. The Treasury Department claims that it has broad authority to offer 'transition relief' in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule. So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit.
- That doesn’t mean that the courts are going to step in. Courts don’t just swoop down and body-check the executive branch or Congress every time one of them oversteps its constitutional powers. They wait for someone to sue. And in order to sue, you need to have legal standing, which, Adler points out, no one seems to. It’s not enough to say that your taxes will be higher, or your government measurably less constitutional, because of the government’s actions. You need to prove that you have been substantially harmed, and it’s not clear that anyone can.
-- Earlier projections from the Congressional Budget Office suggest that this will significantly increase the cost of the law. In 2009, the CBO scored an early version of the proposed health-care law that didn’t have an employer mandate. Then it added one in, and that turned out to make a huge difference in the CBO's projections, as my colleague, Ezra Klein, wrote in the Washington Post in July 2009:
The importance of this set of numbers can be understood only in terms of the catastrophe that was the last set of numbers. On June 15, the Congressional Budget Office scored an incomplete version of this bill. The office estimated that it would cost $1 trillion over 10 years and cover 16 million people. It would've cost, in other words, 70 percent more and covered 20 percent fewer people. The big question, then, is what accounts for the change? And luckily, there's a simple answer: the employer mandate.
The June 15th proposal didn't include an employer mandate. And without one, the news was grim: Employers would drop coverage for 15 million employees and send them to the Health Insurance Exchange where they would need government subsidies to afford health insurance. That meant costs exploded and coverage contracted. Health reform looked like a bum deal.
But oh, what a difference a mandate makes: The new version of the HELP bill includes an employer mandate for firms with more than 25 workers. Every full-time worker who isn't given health-care coverage triggers a penalty of $750. Every part-time employee not given coverage costs $375. Doesn't seem like very much, does it? But it's enough. In Massachusetts, the employer mandate has been a success with a piddling $295 penalty. Indeed, the evidence we have suggests that the small penalty creates a massive change in behavior.
-- That doesn’t mean that the CBO is going to change its score much. The delay is temporary. You can argue -- and I might -- that the successive delays make it unlikely that the employer mandate will ever be fully implemented. But the CBO scores the law as written, not the law as it is likely to actually end up.