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Can the President Delay Obamacare Despite the Statutory Language?

Someone wrote to me about another Law Lunch discussion of yesterday:

“…Jefferson’s refusal to spend $50,000 for gun boats in 1803, after they were no longer needed. Better yet, compare the more recent example of the Secretary of Housing and Urban Development temporarily suspending funds pending a study of whether the expenditures on low income housing were achieving the purpose Congress intended. That was upheld by the DC Circuit in Commonwealth of Pennsylvania v. Lynn, 1974, with the court noting the fact that the reason for the impoundment was program-related. I see a fundamental difference between refusing to enforce the law because the President wishes it had never been passed and delaying enforcement because the President likes the law and wants it to achieve its substantive goals.

Another, but closely related, way to look at this is as a matter of administrative discretion (which does not have to be explicitly stated in a statute to exist). The Train case essentially tells us to ask whether the President has exercised the kind of discretion that Congress would have intended the President to have when it passed the legislation. Would the Congress that passed the ACA have wanted Obama to have the discretion to implement the act in ways that would further the goals of the Act, or even in this particular way? Sure it would have done so. Sure, some of the same people who did not like the Act in the first place are now complaining about Obama’s implementation of it. But that does not mean that he is doing something that the Congress that passed the law did not implicitly want him to do. If they had known the facts of this situation when they passed the act, would they who passed the Act have added a provision telling Obama not to do this? I think it is pretty clear that the answer is no, and what he is doing is not contrary to what Congress intended when it passed the ACA.

Relevant to the discussion of the intent of Congress is, no surprise, an Act of Congress. Congress enacted the Impoundment Control Act of 1974, and then modified it in the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987. That Act now says that rescission, a Presidential cancelling of funds Congress wanted spent, can only be accomplished by a new act; i.e., the President cannot do it alone. In contrast, a deferral of expenditures mandated by Congress could be done by the President without the help of Congress. (The original act recognized that a President might attempt to disguise a rescission as a deferral. Also, the original act had allowed either house of Congress to veto the deferrals, but the invalidation of the Congressional veto caused Congress to eliminate that Congressional veto.) Note however that the ICA says “Nothing contained in this Act, or in any amendments to this Act, shall be construed as * * *superseding any provision of law which requires the obligation of budget authority or the making of outlays thereunder.” This last provision would not seem to override the more specific provisions relating to the President’s ability to defer spending, but it is not clear.

Also relevant is an older statute, the Anti-Deficiency Act, which says, “Deferral shall be permissible only—(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operation; or (3) as specifically provided for by law.” Does this say “to achieve . . . greater efficiency of operation”?”

I agree that in some situations the President can refuse to enforce a statute, old or new. Contract law might be helpful here. “Frustration of purpose” would be one reason. Maybe was what happened with Jefferson and the gunboats. Hypo: Congress tells the President to spend money on an expedition to Tripoli for an ongoing war against Libya, but the war ends; The President should not be obligated to restart the war by attacking Tripoli. Or “impossibility”: The President is told to spend $100 million on research into Method X of curing cancer, but after $2 million is spent there is conclusive proof that X won’t work.

It seems as if there ought to be a “we’re honestly trying, but we just are too slow and can’t implement the law” category, but I’m having trouble articulating it. In the Obamacare mandate, it wouldn’t apply, as far as I can tell (maybe I’m missing something). It’s simply too easy to implement the law in a makeshift fashion. In many cases it is easy to see whether an employer has more than 50 employees and is providing health insurance of some kind, so it would be easy for Treasury to fine them. The regulations that are still to be written deal with the hard cases. The Administration would be justified in holding back on companies that might have 30 or might have 80 employees, depending on how you count. Moreover, it could write up the easy parts (e.g., the address to which to send verification that your company provides health insurance) into temporary regulations that don’t need the APA procedure.

I boldfaced part of the quote above because I disagree with it. First off, I bet a lot of leftwing Congressmen do want the earlier deadline and are grumbling about this being a sellout to business. Second, a number of Roman Catholic Democrats voted for the bill on the assurance that it wouldn’t require abortion coverage. Then, it turned out that the President is interpreting the bill to say that employers must provide coverage for contraceptive drugs which cause abortions as defined by the Vatican (it’s the first days after conception, so everyday language wouldn’t call them abortions, but the Pope does). Congressman Stupak is the best known— actually, “former Congressman” Stupak because things got so hot for him that he decided to abandon his seat. Whether or not Stupak and the others really believed Obama’s assurances or just used those empty promises for cover, they did say that non-coverage of abortion was essential for their YES vote.

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