President Obama recently announced that he would, by executive order, extend the deadline for the employer mandate part of the Affordable Care Act, otherwise known as Obamacare. The reaction on the Right was, uh, negative. Just for fun, I thought I’d Google ‘constitutionality of Obamacare changes,’ just to see what I’d find. I think my computer exploded. Shrapnel everywhere. It was amazing; article after article on the same theme; Obama is a dictator! He’s acting unilaterally in a way that violates the clear intent of the Constitution! George Will weighed in. So did Charles Krauthammer. So did, wow, everyone else on the Right, from Michelle Bachman to Ted Cruz to John Boehner. If Obamacare is the one issue, above all others, that unifies conservatives, then changes to Obamacare amp up the volume to eleven. Any time you get to call President Obama ‘lawless,’ that’s Christmas in July to conservatives.
The argument goes like this. Obamacare is the law of the land. The executive branch has to implement it, but can’t change it without approval from Congress. But the President has changed it, by granting this employer mandate extension. He’s therefore in violation of the Constitution.
I scrolled through thirty pages of invective and bile looking for someone, a constitutional scholar say, making the argument that this particular executive order is, actually, fine; constitutional. The fact that I couldn’t find such a site or blog doesn’t mean that they don’t exist. People who hate this President have generated so much traffic for any anti-Obama site that voices on the other side become hard to find.
So I thought I’d write one. I’m declaring myself a Constitutional scholar, based on having read it a couple of times. Read some books about it. I figure I can at least make an argument.
And I figured I’d start with the Constitution itself, see where that leads us. So: Article One starts off with this: “all legislative powers herein granted shall be vested in a Congress of the United States.” And Article Two starts off with this: “The executive power shall be vested in a President of the United States.” Huh. That’s it. That’s all the guidance the document grants us.
Let’s break it down. The ACA has in it certain requirements. Employers are required to provide health insurance for their employees, given certain stipulations. And employers are given a certain time frame by which they’re supposed to accomplish it. So, on the one hand, you could legitimately argue that the entire bill, including the specific deadlines mentioned in it, have all now become the law of the land, in which case President Obama can’t change those deadlines without Congress’ approval. On the other hand, you could argue that the mandate itself is the clear intent of the law, and that things like deadlines are more like technical matters that the executive branch can amend consistent with that intent.
I think that both of these interpretations are potentially valid. I think that the Constitution doesn’t specify what provisions of a law are ‘legislative’ mandates and which ones are up to ‘executive’ discretion. And I think, historically, that the executive branch has been granted some latitude regarding the implementation of laws passed by Congress. As long as the executive branch doesn’t actually violate a law, it can execute the law in lots of different ways. I would add that, realistically, the executive branch has to have some wiggle room here. As long as a good faith effort is being made to implement the law, the executive branch has to have some logistical leeway.
Before I deal with this specific case, though, I think some context might be in order. The complaint is that President Obama didn’t have the authority to unilaterally change a deadline, that to change a deadline, he needed Congressional approval. Fine. But in reality-world, Congressional approval was never going to happen. We all know this, right? The House of Representatives has voted to repeal Obamacare, what, over 40 times? The rhetoric on the right is ferocious on this subject. The Tea Party loathes everything about the ACA.
So suppose President Obama had gone to Congress and said ‘I want to extend the employer mandate by a year.’ What are the chances that they would have passed a bill doing that? Zero. Nada. There is no chance that the House of Representatives would have passed any such bill. None. There would not have been a single Republican vote in the House for any such measure.
Nothing unites Republicans like their hatred for Obamacare. They were trying to destroy it. If the President had said ‘I’d like Congressional approval to put off this mandate. If you don’t give me that approval, I think the whole program might fall apart,’ well, that was what the House wanted. For the bill to fall apart. That’s why they kept voting to repeal it, over 40 times, right?
So the President couldn’t possibly ask Congress for permission to extend the employer mandate. There’s no chance Congress would ever have passed any such bill. And knowing that Obamacare implementation was in jeopardy would have given the House the lever it needed to repeal the whole thing.
My argument, then, is that the only way the President could fulfill his Constitutional obligation to execute the ACA law passed by both House and Senate and signed into law by him was to act unilaterally regarding implementation. That an executive order delaying the employer mandate was the only possible way to actually respect and honor the will of Congress when it passed the bill in 2010.
That’s why the President did not act unconstitutionally when he delayed the employer mandate. He did not act tyrannically, he did not subvert the Constitution, he did not violate his oath of office. It was his Constitutional obligation to execute the law. His mandate was to follow the clear and unmistakable intent of the ACA. Businesspeople (like Eric Schmidt, the CEO of Google), visited him and asked for an extension. The Department of Health and Human Services took a little longer than usual to write the specific regulations that employers needed to follow. A short extension of the implementation deadline was needed, for understandable and practical reasons. By executive order, he extended the deadline. That’s a perfectly reasonable way for him to proceed.
So it turns out, there is no Constitutional crisis here. Congress has legislative authority, and the President has executive authority. Implementation deadlines exist, probably, in some gray area between ‘legislation’ and ‘execution.’ In reality, though, they reside more comfortably on the ‘executive’ side of the equation.
And given the political realities with which a President must contend, there was simply no realistic way to seek Congressional approval. If the House wanted a say in Obamacare implementation, it might have demonstrated some good will first. Like, I don’t know, not voting to repeal the bill 40 times.
Rhetoric has consequences. And it does strike me as disingenuous to say ‘Obamacare is treasonous, and Obama is Hitler for passing it!’ and then, in the next breath, argue ‘also, you must rigidly enforce its every provision!’
The Constitution is really really important. Abiding by its provisions is the obligation of every lawmaker and by every President. But this is not an ‘unlawful’ or ‘unConstitutional’ President, and a slight extension of the employer mandate has not led us to the brink of Constitutional crisis. Maybe it’s time to tone down the rhetoric a little, and, I don’t know, maybe pass an immigration bill or something. How’s that sound, guys?