Legal Case for Individual Mandate Delay Stronger Than Employer Delay

Conn Carroll

10/22/2013 10:30:00 AM - Conn Carroll

More than three weeks after President Obama launched HealthCare.gov, not only has it become abundantly clear that the site is a complete non-functioning catastrophe, but it is also becoming more likely that the site will not be fixed for some time.

Due to this failure, as Guy Benson noted yesterday, the White House is now leaving open the possibility that Obama will delay enforcing the individual mandate, probably by administrative fiat. But would such a move be legal?

If done right, yes, Obama could probably delay the indidivual mandate unilateraly. Nicholas Bagley, an assistant professor of law at the University of Michigan Law School, and Austin Frakt, a health economist with the U.S. Department of Veterans Affairs, explain:

The secretary is explicitly empowered in yet another provision of the law to “establish a program” for determining “whether to grant a certification” for a hardship exemption. That gives Sebelius latitude to craft sensible certification rules for the exchanges.

As things stand, the rules the secretary has put in place provide for an individualized application process. But nothing in the law prevents her from tweaking that approach. If necessary, she could draft a new rule instructing nonfunctional exchanges -- including the federally operated ones -- to issue blanket certifications on behalf of all of the uninsured in their states. With those blanket certifications, the penalty would be waived -- and all without congressional action.

Considering how controversial the individual mandate always was (remember, Obama opposed it in the 2008 Democratic primary), it is not surprising that Democrats put an easy executive out on the mandate into the law.

The same is not true of the employer mandate which recieved far less attention in Obamacare's passage. Nothing in Obamacare gives HHS any authority to delay the employer mandate, which Obama did anyway on July 5th of this year.

Instead, Obama was forced to use an obscure passage of the U.S. tax code to justify his employer mandate.

If both of Obama's mandate delays are challenged in court, the employer mandate delay would be on much shakier legal ground.