Obamacare Delays May Mark 'major shift of constitutional power'

The Obama administration has issued dozens of delays to various Obamacare deadlines. University of Michigan law professor Nicholas Bagley says the President appears to be overstepping his constitutional authority.

Bagley teaches at the University of Michigan, specializing in “administrative law, regulatory theory, and health law.” Wednesday the New England Journal of Medicine published a piece in which Bagley reviewed the legality of the President’s ad hoc adjustments to Obamacare.

First, Bagley cites Heckler v. Chaney a 1985 Supreme Court decision which grants agencies the right to set priorities and deploy resources as they see fit. Bagley offers this example, “Ticketing fewer jaywalkers, for example, may allow the police to lock up more armed criminals.”

On the other hand, the Constitution mandates that the President “take Care that the Laws be faithfully executed.” So there is a grey area between perfect enforcement of every law, which may not be feasible or advisable given limited resources, and the requirement not to flout the law as passed. The core question, as Bagley sees it, becomes “At what point does a decision not to enforce the law ripen into a decision to dispense with it?”

In Bagley’s view, the dividing line between regulatory discretion and flouting the law comes when the administration encourages people to “violate” the rules.

Encouraging a large portion of the regulated population to violate a
statute in the service of broader policy goals — however salutary those
goals may be — probably exceeds the limits of the executive’s
enforcement discretion. The U.S. Court of Appeals for the D.C. Circuit has said that “an
agency’s pronouncement of a broad policy against enforcement poses
special risks that it has consciously and expressly adopted a general
policy that is so extreme as to amount to an abdication of its statutory
responsibilities.” The ACA delays appear to be just such broad — and worrisome — policies.

Bagley doesn’t return to his police resources analogy but one might say that choosing not to ticket every jaywalker is different from the police announcing jaywalkers will not be ticketed in January. One is a matter of deploying scarce resources, the other is an abdication of responsibility.

Bagley says the decision to delay the employer mandate is less problematic because the I.R.S. has a history of granting “transitional relief.” However, even here Bagley notes that previous instances of such relief have been brief, not “a sweeping exemption that will relieve thousands of employers from a substantial tax for as long as 2 years.”

Overall though, Bagley says “the delays appear to exceed the traditional scope of the President’s enforcement discretion.” While he seems to sympathize somewhat with the President’s political predicament, he points out that a precedent is being set, one that a future President might use to undermine rather than shore up the ACA. Bagley concludes with his thoughts on legislative versus executive authority.

More generally, the Obama administration’s claim of enforcement
discretion, if accepted, would limit Congress’s ability to specify when
and under what circumstances its laws should take effect. That
circumscription of legislative authority would mark a major shift of
constitutional power away from Congress, which makes the laws, and
toward the President, who is supposed to enforce them.

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