The Administration’s decision to postpone the effective date of the employer mandate in Obamacare (i.e., the requirement that employers with 50 or more employees must either provide a certain prescribed minimum level of health care benefits or pay a fine) by a year raises some interesting questions:
- Why aren’t they getting it done? They’ve had over three years. Couldn’t they have started rolling out proposed regulations or talking about problems within two years after the law passed, so they would have been a year and a half for comments and help – and letting us know? (For supporters of Obamacare, be careful what you say about needing to wait until after the 2012 election to issue proposed regulations or discuss problems.)
- What does the lack of the employer mandate do for the goal of making sure people get health insurance? (If it’s not really necessary, as some are now saying, why was it in the law to begin with?)
- What does the fact that the government will not be collecting penalties from employers that do not provide health insurance to their employees do for the cost estimates of the law? (Remember how the law wasn’t going to cost any money. Is that still true? Does anybody have a clue?)
- How many other parts of the law don’t work or can’t be done on time? When we will find out about them?
- When you start a program with so many interrelated parts and you start taking pieces out of it, will the program still work like its supporters said it would? Once again, does anybody have a clue?
Perhaps the biggest question, however, is: How can the President do this? This is a law. The law says that the employer mandate and the penalties come into effect on January 1, 2014. How can the president just say they don’t come into effect? Prosecutorial discretion is a reason (or excuse, depending on how you want to phrase it) in appropriate cases. This isn’t one of those cases. Can the President just ignore a law because it’s too hard or too inconvenient?
Beyond that, and more importantly, do we want the President to have the right to just decide to not to implement certain laws or establish certain programs? Some Republicans are not objecting to the Administration’s decision because they don’t like the employer mandate, and they are glad to avoid it. But what about the next law? Why worry about border security in the immigration bill if the President can just decide to suspend that part of the law?
For Democrats who are not objecting because, well, President Obama is a Democrat, consider the supposed gold standard of abuse of the Presidency: Richard Nixon. Have they thought about what the next Richard Nixon could do with the kind of power they are now conceding to Barack Obama?
Protection of our liberty and of our democratic form of government lies
in following proper rules and procedures.
Part of these rules and procedures are enforcing and implementing laws
even if you disagree with them. Allowing
a president to decide to not implement a law or to not establish a program that
has been passed by Congress because he thinks that it’s not a good idea or that
it’s not necessary or that it’s too hard, is a violation of our agreed-upon
rules and procedures and a worrying derogation of our liberty and democracy.
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Note: For a better explanation of
the President’s decision as an abuse of power, see “Obama Suspends the Law,” by
Michael W. McConnell, here. Mr.
McConnell is a former judge of the U.S. Court of Appeals for the Tenth Circuit
and is currently a professor of law at Stanford Law School.
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