Late yesterday, the Treasury Department announced that it will be delaying the employer mandate provision of the Affordable Care Act (Obamacare) by one year. Treasury’s ostensible reason is to simplify reporting requirements, but Josh Barro explains that is either lame or fake. In short, the Obama Administration is having difficulty implementing its signature legislative achievement, and so is pushing it back to try and ward off some of the consequences of a bungled law.
Last week, the Supreme Court overturned a federal law (DOMA), which having declared it unconstitutional, the Department of Justice had already refused to defend in court. The Court simultaneously denied standing to a California group seeking to defend ballot initiative Proposition 8, which had amended the California constitution to ban gay marriage. The California executive had refused to defend that popularly passed measure, and so the amendment was defeated by ultimate default after being struck down by a lower court.
What these have in common is an executive tradition with an ever increasing sense that it is not only the executor of the laws, but the legislator and judge as well.
In the latest issue of National Affairs, Tevi Troy detailed how Team Romney planned to implement their “pledge to repeal Obamacare.” Troy acknowledged that “even in the optimistic scenarios that had Romney winning the Presidency,” the GOP would lack full control of the Senate, and so “a straight-up, all-out repeal was unlikely.” As Jordan described previously, their strategy was: “eat away at enough of the the thing that collapse is inevitable and repeal seems like the better option to Senate Democrats.”
Because of the great “leeway” given to the HHS in making key decisions about Obamacare, Romney’s team of experts concluded that, “in the hands of an administration eager for repeal,” it would be possible “to effectively nullify the new system through a carefully choreographed series of executive actions.” Troy says “the regulatory rollback would have been so complete that we were confident Obamacare never could have gotten off the ground,” and a better designed system could be pushed to replace it.
Such an initiative would have come under great contumely, and provoked a great outcry from Democratic circles and the media, who would have rightly called it a breach of the principle that the executive should enforce Congress’s duly passed laws. Congress has abdicated so much legislative authority to the executive branch, however, that it has enabled any arbitrary implementation and enforcement of its laws that satisfy any executive’s political concerns.
In related news, the Dodd-Frank financial system reform still has significant regulations outstanding as pressure is brought on regulators to delay and water down another complex mess of well-intentioned legislation. And before the administration began its push for immigration reform, it ramped up enforcement of border laws so as to mollify conservative critics, but those same critics have no recourse if the administration should slack at enforcement after passage.
More, and more, it seems, laws are seen as a signals to the executive and bureaucracy of topics to take up and dispose of as they please, rather than specific instructions in need of execution. That should trouble all of us.