It’s back-and-forth again between Republicans and the White House over – you guessed it – Obamacare.
The latest attack comes from GOP Sen. Mike Lee of Utah, who said on Sunday that President Obama’s collective decisions to delay implementation of a number of provisions in the Affordable Care Act represent a “shameless power grab” by his administration.
"This is a shameless act, a shameless power grab that is designed to help the president and his political party achieve a particular outcome in a partisan election," Lee said during an interview on “Fox News Sunday” with Chris Matthews. “The Constitution doesn't give the president that power.”
He went onto say that the delays are little more than Obama playing politics in an election year with an unpopular law.
“It is not the president’s prerogative to simply make this the law by the stroke of the executive pen," Lee said.
The Utah senator’s comments come a week after the Treasury Department issued rules delaying the so-called employer mandate – the provision within Obamacare that requires businesses to provide health insurance for their employees – for another year, until 2016. The rule change applies to companies with between 50-99 employees. In order to qualify, companies must certify to the government, by means of affidavit, that they have not reduced employee numbers or hours in order to qualify for the exemption – a government first.
As you might have expected, the White House defended its latest changes, saying that Republicans are also attacking the rule for purely political reasons.
"Let's just be honest -- the Republican criticism is that the president is taking into account the need to lessen disruptions to small businesses and employers?" Gene Sperling, the director of the White House National Economic Council, said last week, according to The Huffington Post.
“Do you have any question that had he not made those adjustments, that the criticism would be coming from completely the other direction?” he continued. “So I find it unusual that the president goes out of his way and the team goes out of its way to have a smoother transition to new policies with less disruption for small businesses, and Republicans are complaining about that.”
Still, Lee has a point regarding the president’s actions and constitutional authority.
Writing in the Washington Post Feb. 11, law professor Jonathan H. Adler writes that the latest rule change is a violation of the law itself (and, by default, the Constitution).
“Administration officials say this new delay is designed to help employers adjust to the law’s requirements, but many observers see more political motivations,” Adler said. “Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions “shall apply” after December 31, 2013. The Treasury Department claims that it has broad authority to offer “transition relief” in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule.”
That said, as Megan McArdle writes over at Bloomberg News, that doesn’t mean that federal courts are just going to “swoop in” and intervene. Someone has to sue first – and that someone, or some party, must have the standing to do so.
Adler points out that there seems to be no one with the legal standing to do so. Time will tell.