An announcement by the Obama administration that it will delay implementation of the employer mandate requirements of the Affordable Care Act is drawing lots of fire and rightly so.
Among the problems with this decision is a fundamental Constitutional problem. Article II, describing the duties of the President of the United States, requires that he or she must “take care that the laws be faithfully executed.”
Presumably, this means that when Congress passes a law and the president signs it into law, the president is required to implement the law as written. This applies to the entire law, not just the parts the president likes.
As anyone who studies U.S. government knows, most laws are not just typed up by a group of Congressmen or Senators sitting around a laptop one day (although some of them surely read like that). Rather, they are carefully drafted to assure continuity with other laws and then subject to endless hearings where testimony is given from all sides in hopes of insuring that no stone is left unturned in developing the law. In other words, the end product is presumably carefully crafted and if passed is supposed to all work together.
Granted, there are many laws that pass as something of a mess. This is because of the amendment process through which some elected officials seek something in return for their votes. One can imagine that this is precisely how Nevada became a border state in the Senate immigration bill recently passed (or else Arizona lost some territory in a sucker bet in a Las Vegas casino).
Still, if a law is later found problematic after passage, it is presumed under the Constitution that Congress will repair the damage and the president will sign the amended legislation.
It is not, however, correct that the president, after discovering a fatal flaw or simply not liking something, decides to either ignore the offensive part of the law or change it himself.
When it comes to the employer mandate requirements of Obamacare, this is precisely what is happening.
After much lobbying by business interests and attempts to draft rules to implement that section of the law effectively, the Obama administration unilaterally decided to change the law by extending the date of implementation for one year. This isn’t a minor change since it affects other sections of the law, particularly those involving subsidies under the individual mandate.
As a well-known former Constitutional law professor (according to MSNBC), President Obama surely knows what is required of him as president. This is why his actions here are so perplexing.
It appears that he’s confusing the definition of the word “execute.” According to Merriam-Webster’s online dictionary, the word “execute” means “to carry out fully: put completely into effect” or “to do what is provided or required by.” This would appear to be what “execute” means in the Constitutional context. It also means “to put to death especially in compliance with a legal sentence.” This seems to be what Obama is doing with the employer mandate. He’s killing it at least for a year.
The more we read about it and the negative impact it is expected to have on individuals, it is also possible that he’s hoping to really kill it or at least change it dramatically (e.g., put the definition of full-time worker back to something more in line with reality).
Prior to its passage, Nancy Pelosi said Congress would need to pass it so everyone could find out what’s in it. Now that its law, we all know what it says and even people once in favor of it (e.g., the unions) don’t like it.
The appropriate way to handle this mess or “train wreck” is to repeal the law and start over. It’s not for President Obama to summarily change the law to his own liking or for his own convenience.