There Oughta Be a Law(yer)

Nothing better depicted Obama's illegal tampering with the clear words of ObamaCare -- his announcement this week that he was delaying the employer mandate for medium-sized companies -- than Michael Ramirez' brilliant cartoon showing the law as a blank page in which Obama had continually changed its words and meaning.

Along similar lines, Charles Krauthammer observes:

But generally speaking you get past the next election by changing your policies, by announcing new initiatives, but not by wantonly changing the law lawlessly. This is stuff you do in a banana republic. It's as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision.

[snip]

Where in the Constitution is the president allowed to alter the law 27 times after it has been passed?"

[snip]

The win-at-all-cost mentality helped create a culture in which a partisan-line vote was deemed sufficient for passing transcendent legislation. It spurred advisers to develop a dishonest talking point -- "If you like your health plan, you'll be able to keep your health plan." And political expediency led Obama to repeat the line, over and over and over again, when he knew, or should have known, it was false.

It is bad enough that the law in sweeping language over 2000 pages delegates the authority to define most of its provisions to the executive branch's secretary of HHS. (Increasingly Congress just seems to be phoning in suggestions to federal bureaucrats). Even worse is that on the few occasions where it doesn't, where the law is clearly written by the Democratic Congress which singlehandedly rammed this through, the president has treated such language as no more than an empty page on which to recraft the provisions to whatever he deems politically expedient at the time.

It didn't get sufficient play, but the very week of this latest outrageous overreaching, the most important court in the U.S. apart from the Supreme Court, the U.S. Court of Appeals for the District of Columbia, finally lowered the boom on executive legislating. Tim Carney of the Washington Examiner drew attention to this welcome development.

The issue in the case was the IRS' expansion of its authority requiring tax preparers "to be licensed, pay fees and undergo federally approved training every year." The regulations were written by former H & R block CEO Mark Ernest (an ethical problem under the law), and were not authorized by the relevant federal law, which only allows the IRS to regulate those who "represent" people before the Treasury.

The Court, in a unanimous decision, smacked down this overreaching, in what I hope will be a harbinger for other matters in which the Executive branch has taken upon itself legislative prerogatives. Per Carney:

The court ruled that the IRS has no authority to regulate tax preparers: "[N]othing in the statute's text or the legislative record contemplates that vast expansion of the IRS's authority," the court wrote.

The Obama administration's argument was absurd, and the unanimous opinion was appropriately blistering: "In light of the text, history, structure, and context of the statute," Judge Brett Kavanaugh wrote, "it becomes apparent that the IRS never before adopted its current interpretation for a reason: It is incorrect."

But this is what the Obama administration does. Frustrated that Republicans control the House and can filibuster in the Senate, Obama has tried to become a superlegislator. Obama has -- illegally -- delayed the employer mandate twice, discarded the income-verification requirement for exchange subsidies, extended subsidies to state-run exchanges and allowed employer subsidies for congressional staff. And that's just on Obamacare.

Maybe the circuit court ruling on the tax-prep rules will remind Obama he's not a lawmaker anymore.

The Washington Post didn't cover the decision the day it was rendered as far as I could see. It was too busy with the distracting state dinner and swoons over Michelle's $12,000 dress. But, unlike the news division, the editors finally took (a disapproving ) note of the White House's tampering with the law and his "cavalier approach" to enforcing the law.

The Treasury Department released rules Monday for medium and large employers, which under the ACA are supposed to chip in for their employees' health care. The law says they were supposed to have provided health coverage to full-time employees by Jan. 1 or pay fines to help defray the government's costs of covering them. Last summer, in response to business concerns that the rules weren't ready, Treasury delayed these requirements for a year.

That was already a stretch of governmental discretion, but it was defensible given the law's complexity and the relatively small consequences of delaying this particular mandate. This week, Treasury changed the rules again: medium-size businesses will get another year before they must comply, and large businesses will have a softer coverage target to meet next year. This delays any bad press or bad feelings engendered by the mandate beyond the 2014 election.

The administration claims legal wiggle room in the Internal Revenue Code, which allows the Treasury secretary to make "needful rules and regulations" about tax collection, including those "as may be necessary by reason of any alteration of law." Treasury has used this provision to justify smoothing out the phase-in of other laws. But the administration is unilaterally making distinctions between large businesses and medium ones; the latter group, which will get hit hardest and scream loudest when the employer mandate kicks in, will be treated more leniently. The law is also explicit that the government should be enforcing penalties already; that's the plainest interpretation of Congress's intent. The administration shouldn't dismiss that without exceptionally good reason. Fear of a midterm shellacking doesn't qualify as good reason.

Studies have shown that the employer mandate isn't key to insuring more people, so its implementation is not crucial to getting the whole ACA working. Rather, it's mostly a revenue-raising measure to fund health-care reform; the first year-long delay cost the Treasury $12 billion. If there's a less disruptive way to raise that money, Congress should repeal the employer mandate. Until then, the president should implement the law.

As the quoted material makes clear, the Post's editors seem more concerned about the loss of tax revenue in the change, but even liberal commentators Ron Fournier and Kirsten Powers indicated they were no longer willing to defend the President's ObamaCare machinations.

Jennifer Rubin also noted that the Obama lawlessness charge is sticking. She reminded readers that this imperious disregard of the rule of law by fiat and press conference and HHS edicts was of a piece with "the president's unilateral revision of immigration laws" and "bogus privileges to avoid investigation of Fast and Furious".

What's to be done about this?

The ever logical James Taranto of the Wall Street Journal observes that the latest Obama legislative move's restriction is silly and meaningless and, actually, every mid-sized firm can take advantage of the delay:

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition" -- that is, if it doesn't fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.

Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive . Call it OmertàCare, a government-imposed conspiracy of silence.

Megan McArdle (and Professor Adler, whom she cites), argue persuasively that the extension is probably illegal and requires only someone with standing to challenge it in court.

The Barack Obama administration recently announced that it is going to delay the Patient Protection and Affordable Care Act's employer mandate for medium-size companies and reduce the requirements for larger businesses. Again? What does it all mean?! Here's what you need to know:

-- This is mostly about "affordability" and compliance, not coverage. Employers with 50 to 99 employees are still covered by the mandate, but they get a year -- until 2016 -- to comply. Employers with more than 100 workers have to offer affordable insurance to only 70 percent of their workforce, instead of the 95 percent mandated for 2016. But according to the Kaiser Family Foundation, virtually all companies with more than 200 employees already offer insurance to their employees, as do somewhere from 85 percent to 90 percent of employers with 50 to 99 workers.

In other words, the employer mandate was never going to substantially increase the number of people who are offered insurance by their employers. Instead, it changes what their employers can offer them by mandating benefits and requiring that it cost no more than 10 percent of an employee's salary.

So the administration is not trying to buy strapped employers more time to cover their employees. More likely, it is still struggling to set up the compliance systems that will allow medium employers to certify that they have met the mandate's requirements, or it is worried about adverse impacts -- expensive changes to benefit plans, or employers who downsize to avoid the mandate -- ahead of the 2014 elections.

-- The delay is probably illegal. Law professor Jonathan Adler argues in the Washington Post that this latest delay -- which comes just six months after the administration delayed the employer mandate the first time -- clearly violates existing legal precedent:

Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions 'shall apply' after December 31, 2013. The Treasury Department claims that it has broad authority to offer 'transition relief' in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule. So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit.

[snip]

Obamacare is a complex system that was designed to work (or not) as a system. If you start pulling pieces out, the whole thing may break down, like trying to run your car without the engine.

However this is resolved, it is worth noting that Columbia Law School graduate Eric Holder and Harvard Law School graduate Barack Obama together have demonstrated the most outrageous disregard for the rule of law in American history. What's going on here, that graduates of two of the country's most prestigious law schools do not respect or even attempt to follow centuries of settled law and tradition, the very things that have kept us from devolving into the autocracies and banana republics of so many other nations? 

Nothing better depicted Obama's illegal tampering with the clear words of ObamaCare -- his announcement this week that he was delaying the employer mandate for medium-sized companies -- than Michael Ramirez' brilliant cartoon showing the law as a blank page in which Obama had continually changed its words and meaning.

Along similar lines, Charles Krauthammer observes:

But generally speaking you get past the next election by changing your policies, by announcing new initiatives, but not by wantonly changing the law lawlessly. This is stuff you do in a banana republic. It's as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision.

[snip]

Where in the Constitution is the president allowed to alter the law 27 times after it has been passed?"

[snip]

The win-at-all-cost mentality helped create a culture in which a partisan-line vote was deemed sufficient for passing transcendent legislation. It spurred advisers to develop a dishonest talking point -- "If you like your health plan, you'll be able to keep your health plan." And political expediency led Obama to repeat the line, over and over and over again, when he knew, or should have known, it was false.

It is bad enough that the law in sweeping language over 2000 pages delegates the authority to define most of its provisions to the executive branch's secretary of HHS. (Increasingly Congress just seems to be phoning in suggestions to federal bureaucrats). Even worse is that on the few occasions where it doesn't, where the law is clearly written by the Democratic Congress which singlehandedly rammed this through, the president has treated such language as no more than an empty page on which to recraft the provisions to whatever he deems politically expedient at the time.

It didn't get sufficient play, but the very week of this latest outrageous overreaching, the most important court in the U.S. apart from the Supreme Court, the U.S. Court of Appeals for the District of Columbia, finally lowered the boom on executive legislating. Tim Carney of the Washington Examiner drew attention to this welcome development.

The issue in the case was the IRS' expansion of its authority requiring tax preparers "to be licensed, pay fees and undergo federally approved training every year." The regulations were written by former H & R block CEO Mark Ernest (an ethical problem under the law), and were not authorized by the relevant federal law, which only allows the IRS to regulate those who "represent" people before the Treasury.

The Court, in a unanimous decision, smacked down this overreaching, in what I hope will be a harbinger for other matters in which the Executive branch has taken upon itself legislative prerogatives. Per Carney:

The court ruled that the IRS has no authority to regulate tax preparers: "[N]othing in the statute's text or the legislative record contemplates that vast expansion of the IRS's authority," the court wrote.

The Obama administration's argument was absurd, and the unanimous opinion was appropriately blistering: "In light of the text, history, structure, and context of the statute," Judge Brett Kavanaugh wrote, "it becomes apparent that the IRS never before adopted its current interpretation for a reason: It is incorrect."

But this is what the Obama administration does. Frustrated that Republicans control the House and can filibuster in the Senate, Obama has tried to become a superlegislator. Obama has -- illegally -- delayed the employer mandate twice, discarded the income-verification requirement for exchange subsidies, extended subsidies to state-run exchanges and allowed employer subsidies for congressional staff. And that's just on Obamacare.

Maybe the circuit court ruling on the tax-prep rules will remind Obama he's not a lawmaker anymore.

The Washington Post didn't cover the decision the day it was rendered as far as I could see. It was too busy with the distracting state dinner and swoons over Michelle's $12,000 dress. But, unlike the news division, the editors finally took (a disapproving ) note of the White House's tampering with the law and his "cavalier approach" to enforcing the law.

The Treasury Department released rules Monday for medium and large employers, which under the ACA are supposed to chip in for their employees' health care. The law says they were supposed to have provided health coverage to full-time employees by Jan. 1 or pay fines to help defray the government's costs of covering them. Last summer, in response to business concerns that the rules weren't ready, Treasury delayed these requirements for a year.

That was already a stretch of governmental discretion, but it was defensible given the law's complexity and the relatively small consequences of delaying this particular mandate. This week, Treasury changed the rules again: medium-size businesses will get another year before they must comply, and large businesses will have a softer coverage target to meet next year. This delays any bad press or bad feelings engendered by the mandate beyond the 2014 election.

The administration claims legal wiggle room in the Internal Revenue Code, which allows the Treasury secretary to make "needful rules and regulations" about tax collection, including those "as may be necessary by reason of any alteration of law." Treasury has used this provision to justify smoothing out the phase-in of other laws. But the administration is unilaterally making distinctions between large businesses and medium ones; the latter group, which will get hit hardest and scream loudest when the employer mandate kicks in, will be treated more leniently. The law is also explicit that the government should be enforcing penalties already; that's the plainest interpretation of Congress's intent. The administration shouldn't dismiss that without exceptionally good reason. Fear of a midterm shellacking doesn't qualify as good reason.

Studies have shown that the employer mandate isn't key to insuring more people, so its implementation is not crucial to getting the whole ACA working. Rather, it's mostly a revenue-raising measure to fund health-care reform; the first year-long delay cost the Treasury $12 billion. If there's a less disruptive way to raise that money, Congress should repeal the employer mandate. Until then, the president should implement the law.

As the quoted material makes clear, the Post's editors seem more concerned about the loss of tax revenue in the change, but even liberal commentators Ron Fournier and Kirsten Powers indicated they were no longer willing to defend the President's ObamaCare machinations.

Jennifer Rubin also noted that the Obama lawlessness charge is sticking. She reminded readers that this imperious disregard of the rule of law by fiat and press conference and HHS edicts was of a piece with "the president's unilateral revision of immigration laws" and "bogus privileges to avoid investigation of Fast and Furious".

What's to be done about this?

The ever logical James Taranto of the Wall Street Journal observes that the latest Obama legislative move's restriction is silly and meaningless and, actually, every mid-sized firm can take advantage of the delay:

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition" -- that is, if it doesn't fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.

Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive . Call it OmertàCare, a government-imposed conspiracy of silence.

Megan McArdle (and Professor Adler, whom she cites), argue persuasively that the extension is probably illegal and requires only someone with standing to challenge it in court.

The Barack Obama administration recently announced that it is going to delay the Patient Protection and Affordable Care Act's employer mandate for medium-size companies and reduce the requirements for larger businesses. Again? What does it all mean?! Here's what you need to know:

-- This is mostly about "affordability" and compliance, not coverage. Employers with 50 to 99 employees are still covered by the mandate, but they get a year -- until 2016 -- to comply. Employers with more than 100 workers have to offer affordable insurance to only 70 percent of their workforce, instead of the 95 percent mandated for 2016. But according to the Kaiser Family Foundation, virtually all companies with more than 200 employees already offer insurance to their employees, as do somewhere from 85 percent to 90 percent of employers with 50 to 99 workers.

In other words, the employer mandate was never going to substantially increase the number of people who are offered insurance by their employers. Instead, it changes what their employers can offer them by mandating benefits and requiring that it cost no more than 10 percent of an employee's salary.

So the administration is not trying to buy strapped employers more time to cover their employees. More likely, it is still struggling to set up the compliance systems that will allow medium employers to certify that they have met the mandate's requirements, or it is worried about adverse impacts -- expensive changes to benefit plans, or employers who downsize to avoid the mandate -- ahead of the 2014 elections.

-- The delay is probably illegal. Law professor Jonathan Adler argues in the Washington Post that this latest delay -- which comes just six months after the administration delayed the employer mandate the first time -- clearly violates existing legal precedent:

Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions 'shall apply' after December 31, 2013. The Treasury Department claims that it has broad authority to offer 'transition relief' in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule. So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit.

[snip]

Obamacare is a complex system that was designed to work (or not) as a system. If you start pulling pieces out, the whole thing may break down, like trying to run your car without the engine.

However this is resolved, it is worth noting that Columbia Law School graduate Eric Holder and Harvard Law School graduate Barack Obama together have demonstrated the most outrageous disregard for the rule of law in American history. What's going on here, that graduates of two of the country's most prestigious law schools do not respect or even attempt to follow centuries of settled law and tradition, the very things that have kept us from devolving into the autocracies and banana republics of so many other nations?