Republicans and conservative pundits claim that the Affordable Care Act, better known in the media as “Obamacare,” is unconstitutional because several key pieces will be delayed in their implementation. Are they right? A May 22, 2014, article in the New England Journal of Medicine investigates this claim.
Not long after the government announced that it would delay enforcement of the employer mandate, conservatives took to the airwaves to denounce the move as unconstitutional. Columnist Charles Krauthammer, speaking on Fox News Channel’s O’Reilly Factor, said as much.
“The promise of this president was Obamacare won’t cost a penny,” Krauthammer said on the show. “He kept pretending and they kept putting provisions in the law that would make the CBO create estimates on these provisions that would show that it would pay for itself. Now a lot of them have been completely discounted. Now, one of them is the employer mandate. That was supposed to be a source of revenue. Well lo and behold, we’re not going to have it.”
But is that move illegal? “Of course it’s unconstitutional,” Krauthammer told the Fox viewers. “The Constitution says the executive has to faithfully execute the laws and here it is faithfully ignoring a law it doesn’t like.”
Actually, the mandate is going to be postponed in implementation, not discontinued, as Krauthammer claims. But that didn’t stop New Jersey Rep. Scott Garrett from calling the delay “unconstitutional” and demanding the mandate be abolished. “The Congress must stand up firmly and make the public aware that the president has violated his oath of office, that he has violated the Constitution, specifically the section which basically says he must fulfill and faithfully execute the laws that Congress enacts,” the congressman told Newsmax.
But is Obama acting unconstitutionally? That’s not the conclusion reached by Timothy Stoltzfus Jost and Simon Lazarus. Writing in the New England Journal of Medicine, the authors’ article “Obama’s ACA Delays – Breaking the Law or Making It Work?” reaches the opposite conclusion from Krauthammer and Garrett.
“The ACA is a massive law, imposing hundreds of requirements on federal agencies and private entities. Many provisions of the law have ‘effective dates’ by which they were to have been put into effect. Although the vast majority of these provisions have been implemented on time, it has not been possible to meet all deadlines.” The two cite a lack of funding from Congress, the website glitches, the need to phase in the law, and the importance of not disrupting employment and insurance markets, as the authors claim.
That may be a reasonable excuse, but is there any precedence? “As the George W. Bush administration implemented the 2003 Medicare Modernization Act, which created the Medicare prescription-drug program, it waived enforcement of the unpopular late-enrollment penalty for one year for some beneficiaries, delayed a key element of the law’s method for calculating the share of premiums paid by some beneficiaries in order to reduce their current premiums, and limited enforcement of the law’s requirement that insurers provide medication therapy management programs in order to ease the burden on insurers,” Jost and Lazarus point out. And it is unlikely the GOP called Bush’s move unconstitutional a decade ago.
So Republican Presidents have delayed implementation of some parts of laws too, but what might happen if the Obama Administration is taken to court? Both authors cite the Heckler v. Chaney Supreme Court case from the 1980s, allowing even an agency’s refusal to enforce a law unless the full responsibilities are abandoned.
Many observers expect Republicans to try to impeach Obama for something. But if Jost and Lazarus are right, the ACA delay is unlikely to be one of the stronger arguments. Nevertheless, Team Obama does need to find a source of revenue to compensate for the delay of part of the ACA, or voters will have to deal with the unpalatable choice of higher taxes or higher deficits, even if the president can legally delay the ACA.