Tag: ppaca

Yes, Delaying Obamacare’s Employer Mandate Is Illegal

Last week, when most Americans were starting their Fourth of July holiday, the Obama administration announced it will wait until 2015 to implement Obamacare’s penalties against employers who fail to offer “affordable” and “minimum value” coverage to their workers, rather than impose this “employer mandate” in 2014, as the statute requires. The administration’s stated rationale is that, despite nearly four years of lead time, it still won’t have the capacity to collect from employers the information required to determine which employers will be subject to penalties in 2014. As a result, the administration also announced it would not require employers to report that information until 2015, though (again) the statute requires employers to furnish that information in 2014.

Nicholas Bagley, a professor of law at the University of Michigan, suggests that maybe there is a legal rationale for the Obama administration’s delaying these provisions. So let’s take each provision in turn.

1) Has Congress given Treasury the authority to waive the penalties? The answer is no. The employer-mandate penalties unequivocally take effect on January 1, 2014, and the PPACA gives the Treasury secretary no authority to postpone their imposition.

Every element of the employer mandate demonstrates that it takes effect in 2014.

  • If any worker at a firm with more than 50 full-time-equivalent employees receives a tax credit through a health insurance “exchange,” then “there is hereby imposed on the employer an assessable payment.” Those tax credits become available on January 1, 2014. Thus that is also the date on which the penalties take effect.
  • The statute specifies penalty amounts that apply specifically in 2014, and provides that those penalties shall be adjusted for inflation in years after 2014.
  • The section creating the employer mandate even contains an effective date: “The amendments made by this section shall apply to months beginning after December 31, 2013.”

The statute gives the Treasury secretary the authority to collect these penalties “on an annual, monthly, or other periodic basis as the Secretary may prescribe.” It does not allow the secretary to waive the imposition of such penalties, except in one circumstance: Section 1332 authorizes the Treasury secretary to waive the employer mandate, but only as part of a state-specific waiver, and only if the state enacts a law that would provide equally comprehensive health insurance to as many residents, and only if that law would impose no additional cost to the federal government, and only if there is a “meaningful level of public input” over the waiver and its approval, and even then not until 2017. In other words, Congress spoke to the question of whether and when the executive should be able to waive the employer mandate, and Congress clearly did not want the administration to waive it unless certain specified conditions were met.

Nevertheless, Treasury claims it has the authority to waive those penalties without following Congress’ instructions: “[T]he employer shared responsibility payments…will not apply for 2014. Any employer shared responsibility payments will not apply until 2015.”

2) Has Congress given Treasury the authority to waive the reporting requirement? Again, the answer is no.

The PPACA added two sections to the Internal Revenue Code (sections 6055 & 6056) that require employers to report certain information on their health benefits and the workers who enroll in that coverage, in order to help the IRS determine whether those workers are eligible for tax credits and whether the employer is subject to penalties. Again, the statute is clear: those reporting requirements take effect in “calendar years beginning after 2013” and “periods beginning after December 31, 2013.” The statute contains no language authorizing Treasury to waive those requirements.

Bagley argues the statute does contain language that might enable Treasury to delay the imposition of these reporting requirements. Sections 6055 & 6056 state that employers must furnish this information “at such time as the Secretary may prescribe.” He writes, “Delaying the reporting requirements until 2015 is arguably just a specification of the ‘time’ at which the reports must be submitted.”

This theory reflects a misunderstanding of what an effective date is. When Congress imposes an obligation on some party, that obligation becomes effective on the effective date. The secretary’s discretion to prescribe the time at which the affected party must discharge that obligation neither affects the existence of the obligation, nor empowers the secretary to repeal it.

One might argue that Treasury has the authority to say employers need not report the required information regarding their 2014 health benefits offerings until, say, the next year, when they report the same information for their 2015 offerings. Yet that is not what Treasury is doing. Treasury claims it can altogether eliminate the obligation to report the 2014 information: “The Administration…will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin.”

Moreover, if the language Bagley cites were interpreted to permit Treasury to waive the mandate and reporting requirements for 2014, is there any reason why that interpretation would not empower Treasury waive those provisions indefinitely? Could the secretary determine employers need discharge these obligations every 1,000 years? If not, why not?

Finally, Bagley concludes no one would have standing to challenge these actions in court. Thus even if the administration’s actions are illegal, he writes, “So what?”

Let’s assume for the moment that Bagley is correct on the standing issue. Here’s “what.” The law is a mutual compact between the government and the people. The more the government acts as though it is not bound by that the law, the more widespread will be the belief among the people that they are not bound by the law, either. That would be a very bad situation. There are already enough people out there who believe the government is not bound by the law that President Obama feels it is worth his time to counsel Americans to “reject these voices” – even as his actions lend credence to them, and further diminish respect for the law. That’s a “what” that I figured law professors understood.

Delay of ObamaCare’s Employer Mandate Shows How Nervous Feds Are about What Lies Ahead

Many have speculated that the Obama administration isn’t prepared to roll out ObamaCare. Some have speculated that even if the administration were prepared, the rollout would still be chaotic with job losses, rate shock, employer dumping, and the like. But since the Obama administration has been remarkably secretive about the status of its implementation efforts, no one has a better perspective on its preparedness, and the potential for chaos, than the administration itself. That’s why the decision to delay the implementation of ObamaCare’s employer mandate for one year is so illuminating.

Implementing the law without the employer mandate will definitely be very chaotic. (How can the federal government determine eligibility for the law’s subsidies if it doesn’t know whether workers received an offer of adequate coverage from an employer? Will the delay cause even more employers to drop coverage? Will it lead to some workers not receiving subsidies who otherwise would? Will employers’ and workers’ responses to the delay affect the risk profile of those who seek coverage through the exchanges? If so, how will that affect insurers, who have already filed their rates based on the assumption that the employer mandate would be in place? Will this delay lead to more delays, and ultimately to repeal? Will it increase political pressure for repeal of the individual mandate?) The whole purpose of the employer mandate was to reduce the economic and political upheaval that the rest of ObamaCare will unleash.

The decision to delay this mandate suggests that, from the Obama administration’s uniquely informed vantage point, the chaos that will result from its delay will be less than what would result from implementing it when the law requires. The administration doesn’t go around looking for ways to make implementation harder. This decision can only be understood as an effort to take the path of least resistance – and if this is the path of least resistance, then ObamaCare itself must be even more chaotic. This decision is the best window we have to see how nervous the administration is about what lies ahead.

Delaying the Employer Mandate Requires Delaying All of Obamacare

The IRS has announced it will postpone the start date of Obamacare’s “employer mandate” from 2014 to 2015. Most of the reaction has focused on how this move is an implicit acknowledgement that Obamacare is harmful, cannot work, and will prove a liability for Democrats going into the November 2014 elections. The Washington Post called the decision a “fresh setback” and a “significant interruption” to the law’s implementation. John McDonough, a prominent supporter of the law, observes, “You’ve given the employer community a sense of confidence that maybe they can kill this. If I were an employer, I would smell blood in the water.” When a die-hard Obamacare supporter like Ezra Klein says the employer mandate should be repealed, clearly things are not going well.

While all of this is true, it misses the two most significant implications of this momentous development:

First, the IRS’s unilateral decision to delay the employer mandate is the latest indication that we do not live under a Rule of Law, but under a Rule of Rulers who write and rewrite laws at whim, without legitimate authority, and otherwise compel behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act’s employer mandate. In the section of the law creating that mandate, Congress included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies:

(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.

It is hard to see how the will of the people’s elected representatives – including President Obama, who signed that effective date into law – could have been expressed more clearly, or how it could be clearer that the IRS has no legitimate power to delay the mandate. Again, Ezra Klein: “This is a regulatory end-run of the legislative process. The law says the mandate goes into effect in 2014, but the administration has decided to give it until 2015 by simply refusing to enforce the penalties.”

No Obamacare Exchange in 36 Mississippi Counties?

The Associated Press:

People in 36 of Mississippi’s 82 counties may not be able to buy health insurance through the new federal online marketplace when it starts enrolling customers in October. Insurance Commissioner Mike Chaney says two insurers have announced offerings so far, planning to serve 46 counties.

Unless more companies sign up or the existing companies expand their plans, consumers in the remaining counties won’t be able to buy health insurance through the online exchange. Coverage under those policies begins Jan. 1. 

“I don’t know what to tell you about the other 36 counties,” Chaney told The Associated Press in a phone interview this week. “You’re just out of luck.”

That means they won’t be able to use federal tax credits offered to consumers with incomes of between 133 percent and 400 percent of the federal poverty level. That’s up to about $46,000 for an individual and about $94,000 for a family of four, with those at the top end getting little or no subsidy.

People who don’t buy insurance are required to pay a $95-a-year penalty starting in 2014. A spokeswoman for the U.S. Treasury Department couldn’t immediately say Thursday whether people would be penalized in counties without offerings.

My reading of the statute is that this should have little effect on the penalties that Mississippians face under Obamacare, since the state’s refusal to establish an exchange has already exempted 128,000 residents from penalties under the individual mandate, and all Mississippi employers from penalties under the employer mandate. 

But assuming the IRS gets away with illegally offering Obamacare’s penalty-triggering “premium assistance tax credits” in states that have refused to establish exchanges, Mississippi employers cannot be penalized for failure to provide “affordable” health insurance to residents of those 36 counties because without any exchange at all, those residents will not be able to receive the tax credits. But employers could be penalized for failing to provide those residents “minimum value” coverage–if a firm employs even a single person in one of the other 46 counties that do receive such a tax credit.

Individuals would still seem to be subject to the individual mandate as they otherwise would. But without an exchange, fewer of them would qualify for the unaffordability exemption from the individual mandate, because there would be no “annual premium for the lowest cost bronze plan available in the individual market through the Exchange” with which to calculate whether they are eligible for that exemption. Of course, the federal Department of Health and Human Services could just throw residents of those counties a hardship exemption.

Obama to NBA: I’m Not Done Raising Your Taxes, Now Help Me Sell ObamaCare

President Obama has a lot of nerve asking the National Basketball Association to help him sell ObamaCare to their fans.

It’s not just that President Obama is asking the NBA to lend its credibility to the least popular thing this side of Tim Donaghy. Obama has spent his political career trying to take more money from high-income earners like NBA players, executives, and owners. ObamaCare is one of his great successes in that effort. Another is the recent fiscal-cliff-avoidance deal. Yet Obama isn’t satisfied; he wants to take even more of their money. 

NBA players, owners, and executives are extremely talented and productive people. They create lots of jobs. They earn lots of money because they make other people happy. For this crime, they already pay more in taxes than almost anyone, and pay more than they receive from the government in benefits.

Yet President Obama seems to spend every waking moment trying to figure out how to take even more from them. And then he turns around and asks them to help him sell his train wreck of a health care law. Chutzpah.

Before the NBA casts its lot with ObamaCare, every NBA player, executive, and owner should ask their accountant exactly how much this president has cost them. I’m looking at you, Lebron.

ObamaCare, Democracy, and Jonathan Cohn

At The New Republic’s blog, Jonathan Cohn grumbles about the insolence of ObamaCare opponents:

Across the country, Republican state officials vilify the law…In Washington, Republican members of Congress are trying to undermine the law by denying funding for outreach and implementation. According to a report by Elise Viebeck  in The Hill, a few Republicans have suggested they won’t help constituents having trouble enrolling in the new insurance options. And, as Anne Kim and Ed Kilgore from the Washington Monthly recently reported, they’re even refusing to work with churches on crafting a bipartisan fix to what looks like a predictable, if inevitable, glitch in the law’s drafting.

Nobody expects Republicans to praise Obamacare or to give up efforts at repeal, assuming they feel strongly about it. But, as long as Obamacare remains on the books, don’t even its critics have some obligation to enforce the law in good faith? Shouldn’t they be helping constituents without insurance to take advantage of the law’s new options?

Let’s first examine the absurdity of Cohn complaining that “Republican members of Congress are trying to undermine the law by denying funding for outreach and implementation.” Wait, you mean ObamaCare didn’t include enough funding for its own implementation? How does the fault for that lie with congressional Republicans (who opposed this law), rather than congressional Democrats (who enacted it with inadequate funding)? Doesn’t the need for additional funding mean ObamaCare will cost more than supporters claimed when they enacted it? And wasn’t that an accusation they denied? Shouldn’t Cohn be criticizing Democrats for that, too? Does Cohn really mean to say that legislators have a duty to vote to fund a law they want to repeal? Does he also believe legislators have a duty to fund “outreach and implementation” for anti-sodomy laws? What about voter-ID laws? Marijuana prohibition is horribly under-funded; think of all the users who don’t go to jail. Do legislators have a duty to ensure those laws are fully funded and implemented? Do they have a duty to fix any glitches in those laws?

As for Cohn’s question, “as long as Obamacare remains on the books, don’t even its critics have some obligation to enforce the law in good faith?” Any middle-school civics student could tell him the answer is “no.” In our system of government, the executive branch enforces the law, not the legislature, and not the citizenry. So with respect to the federal government, that means there are exactly zero ObamaCare opponents who have a duty to enforce this law. The Supreme Court has clarified that nobody at the state level has a duty to enforce it, either. Given that many opponents (including me) believe ObamaCare to be an unjust law, we could go farther and say critics have a moral duty to resist or disobey itFinally, it’s hard to take Cohn seriously when Jonathan Adler and I are trying to get the Obama administration to enforce the law in good faith, yet Cohn is trying to stop us.

Partisanship Plays a Larger Role in Support for “ObamaCare” than Opposition to It

The latest Kaiser Family Foundation tracking poll provides a fascinating look into how factors other than the content of the Patient Protection and Affordable Care Act affect people’s views of that law.

Kaiser asked respondents their views of the PPACA, alternately describing it as “ObamaCare” and “the health reform law.” Here’s what happened:

  • Among Republicans, calling it “ObamaCare” caused the share reporting an unfavorable view to rise from 76 percent to 86 percent (+10 percentage points), with no discernible change in the share reporting a favorable view.
  • Among independents, calling it “ObamaCare” caused the share reporting an unfavorable view to rise from 43 percent to 52 percent (+9 percentage points), with no discernible change in the share reporting a favorable view.
  • Among Democrats, calling it “ObamaCare” produced no discernible change in the share reporting an unfavorable view, but caused the share reporting a favorable view to rise from 58 percent to 73 percent (+15 percentage points).

A few conclusions can be drawn. 

  1. The PPACA remains unpopular among Republicans, independents, and the public overall (see below).
  2. Republicans dislike the law more than Democrats like it.
  3. A substantial share of both the opposition to and support for “ObamaCare” is driven by partisanship or opinions about President Obama (which are pretty close to the same thing), rather than the content of the law.
  4. Partisanship is a larger factor in Democrats’ support for “ObamaCare” (15 percentage points) than in Republicans’ or independents’ opposition to it (10 and 9 percentage points, respectively).
  5. Dropping the term “ObamaCare” causes Democratic support for the law to fall by 15 percentage points.