Right-wing media accused President Obama of unprecedented overreach resembling that of a "dictator" for the ordinary administrative agency rule-making process surrounding the implementation of the Affordable Care Act's (ACA) employer mandate.
Treasury Department Announced Phased Implementation Of ACA's Employer Mandate
Treasury Department Issued Rule Phasing-In Implementation Of Mandate To Alleviate Burden On Businesses. On Monday, February 10, the Treasury Department announced a new rule which would delay enforcement of the Affordable Care Act's employer mandate for some businesses. The Washington Post reported:
Under new rules announced Monday by Treasury Department officials, employers with 50 to 99 workers will be given until 2016 -- two years longer than originally envisioned under the Affordable Care Act -- before they risk a federal penalty for not complying.
Companies with 100 workers or more are getting a different kind of one-year grace period. Instead of being required in 2015 to offer coverage to 95 percent of full-time workers, these bigger employers can avoid a fine by offering insurance to 70 percent of them next year.
How the administration would define employer requirements has been one of the biggest remaining questions about the way the 2010 health-care law will work in practice -- and has sparked considerable lobbying. By providing the dual phase-ins for employers of different sizes, administration officials have sought to lighten the burden on the small share of affected employers that have not offered insurance in the past. [Washington Post, 2/10/14]
In Response, Right-Wing Media Attack Obama As A "King" And "Dictator"
Fox's Jon Scott Accused Obama Of Acting "More Like King Than President." Fox host Jon Scott cited the mandate change to accuse Obama of behaving like a king on the February 14 edition of Happening Now:
SCOTT: This government was founded because the Framers of the constitution didn't want a king, when Mr. Obama unilaterally decides that parts of his signature health care law are not working for instance and just decides to change the rules, change the timetable, change the implementation schedule; doesn't he act more like a king than president? [Fox News, Happening Now, 2/14/14, via Media Matters]
Rush Limbaugh: Obama "Is Acting Like The Constitution Doesn't Matter. He's King. He's Playing Dictator." On the February 14 edition of The Rush Limbaugh Show, host Limbaugh said it was "institutionally threatening" for the mandate to be altered:
LIMBAUGH: To me, arbitrarily delaying portions of a law is all I need to know it's not right. And it's not only not right that its seriously wrong, that is its institutionally threatening. I mean it is really serious.
What do you mean it isn't fair to change the law to help yourself politically? Why does the motivation even matter? We have a president who's acting as though the constitution doesn't matter, he is king. He's playing dictator. [Premiere Radio Networks, The Rush Limbaugh Show, 2/14/14, via Media Matters]
Fox's Peter Johnson, Jr.: The President Is Engaging In "Cafeteria Constitutionalism." On the February 12 edition of Fox News' Fox & Friends, guest host and Fox analyst Peter Johnson, Jr. accused Obama of "engag[ing] in cafeteria constitutionalism" because of the Treasury Department's announcement:
JOHNSON, JR: I can't accept this notion of delaying. It's erasing, as you say. It's ignoring. The law is on the book. The president has said, 'I'm going to engage in cafeteria constitutionalism. Pick one from here, pick one from there, maybe I'll adopt it, maybe I won't. We'll do it in the year I want to do it when it is politically popular for me to do it.' And so the law is being ignored, plain and simple. [Fox News, Fox & Friends, 2/12/14, via Media Matters]
Charles Krauthammer: "It's As If The Law Is Simply A Blackboard On Which Obama Writes Any Number He Wants." On the February 10 edition of Fox News' Special Report, Fox contributor Charles Krauthammer decried the mandate adjustment as what happens "in a banana republic":
KRAUTHAMMER: But generally speaking you get passed the next election by changing your policies, by announcing new initiatives, but not by wantonly changing the law lawlessly. I mean this is stuff that you do in a banana republic. It's as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision. It's now reached a point where it is so endemic that nobody even notices or complains. I think that if the complaints had started with the first arbitrary changes -- and these are not adjustments or transitions, these are political decisions to minimize the impact leading up to an election, and its changing a law in a way that you are not allowed to do. [Fox News, Special Report, 2/10/14, via Media Matters]
Fox's Tantaros: "They're Writing These Laws With Invisible Ink And Then Just Changing It As They Go Along." On the February 11 edition of Fox News' America's Newsroom, co-host Bill Hemmer and The Five host Andrea Tantaros seconded Krauthammer's claim about a "banana republic":
TANTAROS: I guess it's pushed back another year. I mean, forget the eraser, they're writing these laws with invisible ink and then just changing it as they go along. Terrible uncertainty for businesses. Of course this is done for political reasons. [Fox News, America's Newsroom, 2/11/14, via Media Matters]
Jon Scott: "We Have A White House That Is Just Changing The Law On A Whim." On the February 11 edition of Fox News' Happening Now, co-host Scott compared the Treasury Department's phased-in implementation to changing the legal voting age to 16-years old:
SCOTT: Once again, we have a White House that is just changing the law on a whim, apparently.
What's to prevent the White House from saying, 'you know, we think that 16-year-olds ought to be able to vote in this country, let's do that next election?' [Fox News, Happening Now, 2/11/14, via Media Matters]
It Is Not Unusual For An Administrative Agency To Phase-In Implementation
Treasury Department Has Broad Authority To Grant Transitional Relief. As The New York Times reported on February 10, Treasury official J. Mark Iwry explained how the Internal Revenue Code grants administrative agencies the authority to postpone the enforcement of the employer mandate:
J. Mark Iwry, deputy assistant Treasury secretary for health policy, said the administration had broad "authority to grant transition relief" under a section of the Internal Revenue Code that directs the Treasury secretary to "prescribe all needful rules and regulations for the enforcement" of tax obligations. This authority has often been used to postpone the application of new laws that would cause "unreasonable administrative burdens or costs" to taxpayers, Mr. Iwry said. [The New York Times, 2/10/14]
Other Laws Have Been Delayed During Their Implementation. As detailed in a 2013 newsletter from The Commonwealth Fund, Mark J. Mazur, assistant secretary for tax policy at the Treasury Department, laid out other examples of laws being delayed by administrative agencies during implementation:
As examples, Mazur cited an aviation fuel tax (PL 112-27) Obama signed Aug. 5, 2011, that applied retroactively to July 23, 2011. The administration delayed enforcement until Aug. 9, 2011. Mazur also cited a 2007 small-business bill (PL 110-28) that made changes to standards for tax return preparers to avoid paying penalties effective May 25 of that year. But the IRS announced it would not enforce the new rules on returns due before 2008 [The Commonwealth Fund, 7/10/13]
Administrative Agencies Have Broad Rule-Making Authority Under The ACA
Congressional Research Service: The Affordable Care Act Was A "Particularly Noteworthy Example Of Congressional Delegation Of Rule-Making Authority To Federal Agencies." The Congressional Research Service explained that there are more than 40 provisions within the Affordable Care Act that require, permit, or contemplate rulemaking by federal agencies to implement the legislation. From the CRS report:
Federal regulations generally start with an act of Congress, and are the means by which statutes are implemented and many specific requirements are established. The Patient Protection and Affordable Care Act (PPACA, P.L. 111-148, March 23, 2010) is a recent and particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. This report identifies more than 40 provisions in PPACA (as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, March 30, 2010) that require, permit, or contemplate rulemaking by federal agencies to implement the legislation.
The report indicates that PPACA gives federal agencies substantial responsibility and authority to "fill in the details" of the legislation through subsequent regulations. [Congressional Research Service, 4/13/10]