The New England Journal of Medicine features two excellent articles discussing the legality of the Obama administration’s various delays of provisions of the ACA. Unlike a great deal of the debate over this issue, these articles are nuanced and measured, and I highly recommend them.
Nicholas Bagley, a Professor at the University of Michigan Law School (and the author of a terrific new article in the Harvard Law Review), contends that the delays “appear to exceed the traditional scope of the President’s enforcement discretion.” He distinguishes the ACA delays from traditional enforcement discretion, such as the discretion to allocate resources in a sensible manner, in part because the ACA delays were made public and therefore served the purpose of encouraging regulated parties to violate statutory requirements. While Bagley admits that the administration has some support for its delay of the employer mandate in the IRS’s longstanding practice of affording “transition relief” to taxpayers from newly imposed taxes, he notes that transition relief has typically been brief and covered taxes of “marginal importance.” Finally, Bagley argues that the Obama administration’s ACA delays set a “troubling precedent” for future administrations that may be hostile to the law and desire to use similar levels of “enforcement discretion” to decline to enforce portions of the ACA that are “essential to the proper functioning of the law.”
Timothy Jost, a Professor at Washington and Lee University School of Law, and Simon Lazarus, Senior Counsel at the Constitutional Accountability Center, argue that the ACA delays are not refusals to enforce the law, but rather are unexceptional timing adjustments that Democratic and Republican administrations have historically used when implementing new, complex regulatory schemes. For recent precedent from the Republican Party, Jost and Lazarus point to the George W. Bush administration’s decisions to delay or limit enforcement of various provisions of the 2003 Medicare Modernization Act. And while they find no legal issues with the ACA delays as a matter of administrative law under Heckler v. Chaney or constitutional law under the Take Care Clause, they are careful to distinguish the plans of 2012 Republican candidate Mitt Romney to suspend enforcement of (at least certain parts of) the ACA. Those plans, they write, “would have been the kind of diktat that King George III had imposed on the pre-Revolution colonies and that the framers of the Constitution were intent on denying to the new American presidency.”