The Obama administration’s surprise announcement Tuesday that it was delaying implementation of a significant Obamacare provision may, in fact, be illegal.
The Treasury Department stated that the Affordable Care Act’s employer mandate, scheduled to kick in on Jan. 1, 2014, would be postponed for one year. Critics quickly called this a blatantly political move to make Obamacare less of an issue in the midterm elections. At least one legal observer is also calling it blatantly illegal, according to Breitbart News.
Legal columnist and Liberty University School of Law faculty member Ken Klukowski is also a lawyer embroiled in litigating the Affordable Care Act. He noted that the timetable in Section 1513 of the act, which provides for an employer mandate, is built into the law’s language and is mandatory.
“The law Congress wrote explicitly commands that this provision takes effect in January 2014,” wrote Klukowski. “The ACA does not permit the government to grant a reprieve or an extension. Yet in a blatantly illegal move, the Obama administration is presuming to rewrite the ACA by choosing not to enforce provisions that are causing visible problems.”
Stated differently, the Obama administration is taking over the role of Congress by effectively re-writing section 2014 of the act. And it accomplishes this trick by simply telling the Internal Revenue Service to refrain from enforcing it — ignoring it for one more year.
Klukowski made the following comparison:
But the IRS not enforcing Section 1513 is like a policeman who patrols a stretch of road who says for the next year, he won’t issue any speeding tickets. He has no authority to suspend the law, but if he chooses to violate his duty by failing to enforce the law, then to all the motorists on the road it’s as if the law does not exist.
Delaying enforcement of the employer mandate will also have unintended consequences. Section 1501’s individual mandate will still kick in, and if individuals can’t obtain insurance through their employer, they’ll be left with three choices: They can purchase insurance in the marketplace where it’s likely to be very expensive. They can look for it on government-run healthcare exchanges. Finally, they can pay a penalty, now dubbed a “tax” by the Supreme Court.
As for the second choice — government-run healthcare exchanges — “the ACA only subsidizes insurance policies on an exchange run by a state,” notes Klukowski. “Yet 34 states have refused to join this government-run debacle.”
Just when you thought Obamacare couldn’t possibly get any worse, it just did.
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