When the Obama administration suspended the employer mandate for the Affordable Care Act, business groups welcomed the delay.
The administration framed the decision as “a demonstration of our willingness to work with the business community.”
But as much as the administration deserves credit for recognizing problems with the employer mandate, the delay is a disturbing exercise of executive power. It’s a subversion of the Constitution.
What constitutional authority does the president have to suspend or repeal statutes?
Think about it.
What would people say if the president began refusing to enforce other laws? What if a president decided the National Environmental Policy Act was holding up too much development and suspended it? What if a Republican president suspended the entire Affordable Care Act indefinitely?
The suspended mandate is essentially play-or-pay for employers. It requires employers with at least 50 full-time workers to offer health care coverage or pay a penalty. Full time is defined as 30 hours or more a week.
The mandate was set to begin in 2014. Now it’s going to start in 2015.
Section 1513 of the Affordable Care Act covers the mandate — “shared responsibility for employers.” The Act says nothing about the ability of the president to delay or suspend implementation of the statute.
Not only is there nothing in the Affordable Care Act, there’s nothing in the U.S. Constitution that gives the president that power.
Presidents can veto bills. They can propose legislation. They can’t suspend the law, unless they believe the law is unconstitutional.
Michael McConnell, a law professor at Stanford University writing in The Wall Street Journal this week, cites the example of Congress granting the president a line-item veto to cancel spending in appropriations bills.
The U.S. Supreme Court struck that down.
“There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes,” Justice John Paul Stevens wrote in Clinton v. City of New York in 1998.
Giving power to the presidency to suspend or delay the law subverts the Constitution.