Questions About Obama’s Delay of Healthcare Mandate

I do recall Nancy Pelosi saying about the legislation creating Obamacare, “We have to pass the bill so you can find out what’s in it.”  I’ll say up front I haven’t read it and don’t know what’s in it.  (Most of what I know about the health care market I’ve learned from fellow blogger John Goodman.)  Still, I’m confused about President Obama’s announcement that he’s delaying the employer mandate by a year.

Despite the president’s endorsement of the popular term Obamacare to refer to the Patient Protection and Affordable Care Act of 2010, it is an Act of Law passed by Congress, and the role of the executive branch of government is to execute the laws Congress passes.

How can the president unilaterally decide not to implement a law that Congress has passed?

Imagine the reaction if Obama had not been reelected and President Romney decided not to implement parts of Obamacare.

Although the president’s announcement of the delay is only a day old, I have seen no reports yet that anybody questions the legality of the president’s actions.  Like Representative Pelosi, I don’t know what’s in the law, and due to the absence of public outcry, I’m assuming at this point that what the president did is legal.

This raises the question of how much of Obamacare can be postponed, perhaps indefinitely, just by executive order.  Assuming the president does not win a third term, could the next president delay other parts of the law?  Could a presidential candidate campaign against Obamacare by saying that Obama established the precedent of overriding the provisions of the law by executive order, and if elected, I will do the same to the entire law?

Certainly, if President Obama can delay the employer mandate, any president could do the same.  Whoever is elected in 2016 could say, “Just as my predecessor delayed the employer mandate, I am suspending it until further notice.”  And then, never reinstate it.  The president has demonstrated that the employer mandate (at least) is subject to the whims of the president.

I am not a legal expert, and don’t know the answer to these questions.  I am just surprised that the president can override an Act of Congress like this, and nobody questions the legality of the action.

Randall G. Holcombe is Research Fellow at the Independent Institute and DeVoe Moore Professor of Economics at Florida State University. His Independent books include Housing America: Building Out of a Crisis (edited with Benjamin Powell); and Writing Off Ideas: Taxation, Foundations, and Philanthropy in America .
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