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.