Hank  Adler

The President has reached "You have to be kidding!" stage of executive orders. The latest executive order with respect to Obamacare, as summarized in the Treasury Department 'Fact Sheet', provides:

The employer responsibility provision will generally apply to larger firms with 100 or more full-time employees starting in 2015 and employers with 50 or more full-time employees starting in 2016.

While the employer responsibility provisions will generally apply starting in 2015, they will not apply until 2016 to employers with at least 50 but fewer than 100 full-time employees if the employer provides an appropriate certification described in the rules.*

* Those that claim the exemption for 2015 will need to certify under penalty of perjury that they did not reduce their workforce to fewer than 100 employees in order to qualify.

Nothing about this executive order passes constitutional muster:

· Executive orders cannot create or change law. Executive orders are for the purpose of administrating law.

· Executive orders cannot change one hundred years of court decisions allowing (or in fact encouraging) taxpayers to plan their activities under the tax law to create the lowest possible tax.

Executive Orders - Administration, Not Law

Until the Truman administration, there were no rules or guidelines outlining what a president could or could not do through an executive order. The rules and limitations were provided by the Supreme Court after President Truman issued an executive order placing all steel mills under federal control. President Truman had determined to create his own law. Challenged in the Courts, President Truman's action found itself before the Supreme Court in the case of Youngstown Sheet & Tube Co. v. Sawyer. The Supreme Court ruled that a president could not make law; the Supreme Court ruled that a president could only clarify or act to further a law put forth by the Congress or the Constitution


Hank Adler

Hank Adler is an Assistant Professor at Chapman University.

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