President Barack Obama’s announcement Monday that he would extend the suspension of Obamacare’s employer mandate is illegal in a way that should concern both liberals and conservatives, as the left and Obama’s media supporters go into overdrive to argue that his actions are legal and don’t violate his oath of office. CNN’s Jeffrey Toobin is leading the charge with a false argument that Obama is allowed to direct the Treasury to delay the collection of new taxes under pre-existing law.
Obamacare’s employer mandate is Section 1513 of the Affordable Care Act, and applies to every company employing 50 or more people. Late last year, President Obama declared it would not be in effect until 2015, despite the fact that Congress included as the last sentence in the Mandate–the sentence located in Section 1513(d), on page 124 Stat. 256 (for those who are interested)–specifies that the monthly requirement to provide insurance goes into effect “beginning after December 31, 2013.”
Unlike countless other provisions in federal law, it includes no language authorizing the president or anyone else to extend, suspend, or otherwise modify this requirement. Yet on Feb. 10, 2014, Obama declared that for employers with 50 to 99 employees, he would again delay the Employer Mandate until 2016.
Millions of American are crying foul at Obama’s announcement, as they remember from high school that under the Constitution of the United States, only Congress can make federal laws, and the president is tasked with executing those laws.
In reacting to the president’s decisions, various media commentators have begun with the disclaimer that they are not lawyers, then gone on to suggest ridiculous legal theories about why Obama is allowed to do this.
But anyone with legal training should know better, or have the skill set to research this issue fully and confirm that Obama’s actions are a blatant violation of the Constitution. You actually don’t need a law degree to reach this conclusion; as I discuss in my forthcoming law review article in the Harvard Journal of Law & Public Policy, the Constitution’s Take Care Clause says the president “shall take care that the laws be faithfully executed.” And the Presidential Oath Clause makes every new head of state swear that he “will faithfully execute the office of president of the United States,” and that he will preserve the Constitution.
Those constitutional provisions sum it up. Yet many lawyers on the Far Left are ignoring this plain truth, the fallout from which would seriously damage an already-unpopular president.
Case in point is CNN Senior Legal Analyst Jeffrey Toobin. On Feb. 11, Toobin did a terrible disservice to CNN’s viewers when commenting on this issue. He noted that there is an old federal statute that gives the treasury secretary discretion on how to administer new taxes. Then he told Wolf Blizter, “The Supreme Court held Obamacare is fundamentally a tax.”
Toobin is either brazenly dishonest or regrettably incompetent. The Supreme Court said no such thing. Obamacare is 2,700 pages long, and has 450 sections. There are plenty of taxes in that behemoth, including taxes on everything from medical devices to insurance plans. But most of the provision are commercial regulatory laws–a federal takeover of healthcare products and services. For example, the provision requiring employers to spend less than 20 percent of healthcare premiums on overhead administration is not a tax. The section saying that employers must provide “preventive care” is not a tax. The section requiring insurers to cover children on their parents’ policies up to age 26 is not a tax. And the section that employers must provide private space for nursing mothers to breastfeed is not a tax. And so on.
As Breitbart News reported in detail when this issue was decided in 2012 by a 5-4 vote, the Supreme Court held that one section that looks like a regulatory provision under the Constitution’s Commerce Clause–the individual mandate–is instead authorized by the Tax Clause of the Constitution. The Court added that the individual mandate is not truly a tax, because the IRS doesn’t take your money; instead it’s telling you that you must spend your own personal money to buy insurance from a private company.
If the individual mandate were a true tax, the Court found, laws like the Anti-Injunction Act would have forbidden any lawsuits against the individual mandate from being litigated until the provision went into effect in 2014, just last month. But nonetheless it said the Constitution’s power to impose taxes, not regulate interstate commerce, authorized the individual mandate.
To be fair, if the individual mandate is considered a form of tax, then the only other section that is not really a tax but fits the Supreme Court’s new rule for the Tax Clause is the employer mandate. But the Supreme Court has not yet called it a tax. Even if it were, it still doesn’t mean that the Treasury has any authority to change the date Congress wrote into the law.
That gets pretty deep into the legal weeds, but if you’re the senior legal analyst for a media outlet like CNN, you are paid to get the law right and inform the public accurately. Saying the Supreme Court held Obamacare is a tax is simply not true, as is suggesting Obama can change a date found in the law itself.
Moreover, plenty of other Obamacare suspensions are in no way taxes, and are in every way unlawful. Saying that insurance companies can keep issuing policies that violate Obamacare has nothing to do with taxes; it instead affects dozens of regulatory provisions in the Affordable Care Act. And that’s only one of the 27 changes that Obama has declared to this Act of Congress–all of which violate the Constitution. Countless federal provisions include a clause giving administrative officials leeway or flexibility; the employer mandate is not among them.
The employer mandate is terrible policy, but only Congress can change that. If Obama wants to change this law, he must take his proposal to Congress. He cannot simply change the law with a speech. That undermines our constitutional separation of powers, and instead establishes an imperial president.