President Barack Obama's most recent change to the Affordable Care Act — a further delay in the employer mandate — is unconstitutional and sets a dangerous precedent, say lawyers who are challenging the law.
Obama defended the most recent Obamacare delay, saying he wanted to make sure employers on the hook for coverage weren't "unnecessarily burdened," while administration officials cite their taxing authority as legal justification for the action.
But the move raises the question: Can the president simply make tweak after tweak at will, without asking Congress about the changes?
"No, he can't," argues Judicial Watch President Tom Fitton, whose nonprofit group is representing South Florida orthodontist Larry Kawa, who sued the administration over an earlier delay in the employer mandate.
Fitton said the president should be required to make changes the right way, not arbitrarily.
"If the president thinks Obamacare is deficient, then he should rewrite it through the constitutional process of legislation rather than through fiat," Fitton told Newsmax.
Citing James Madison's warning against "elective despotism," Fitton said "this is despotism in the American context and it's dangerous."
There have been 27 adjustments to the Affordable Care Act that have been made without congressional approval, Fox News reported.
The administration's legal rationale for the delay rests on the notion that the Treasury Department has wide latitude in enforcing tax laws.
Obama's deputy assistant treasury secretary for health policy, J. Mark Iwry, said his agency was granted the ability to offer relief in the legislation through the federal Internal Revenue code that allows them to "prescribe all needful rules and regulations for the enforcement" for taxing purposes, The New York Times reported.
Such enforcement would apply to the myriad of new taxes that are contained in the Obamacare law, including penalties for individuals not buying health insurance.
Tim Sandefur, an attorney with the Pacific Legal Foundation in Sacramento, Calif., which is challenging Obamacare using a different legal argument, told Newsmax that delaying the Obamacare mandates by executive orders "is setting an extremely dangerous precedent for what future administrations are going to be able to do. The whole point of having a legal system is you can tell what it going to happen tomorrow.
"The fact that the president has now made it policy to make it up as he goes along means that people don't know what their liabilities will be tomorrow, what legal obligations will happen tomorrow."
Speaking Tuesday in Washington during a joint press conference with French President Francois Hollande, Obama defended his decision to delay parts of the employer mandate until 2015 as "flexibility," even as his decision was seen by critics as politically expedient with midterm elections approaching.
Under his latest order, employers with 50 to 99 workers will have another year before they are required to provide insurance coverage for workers or pay a penalty. Companies that employ 100 or more workers have until 2015 to ensure that a percentage of fulltime staffers are covered, starting with 70 percent before requiring full coverage three years from now.
"This was an example of, administratively, us making sure that we're smoothing out this transition," Obama said of the changes.
"Where we've got companies that want to do the right thing and they're trying to work with us, we want to make sure that we're working with them as well," Obama said. "And that's going to be our attitude about the law generally — how do we make it work in an optimal sort of way."
Syndicated columnist Charles Krauthammer, appearing Monday on Fox News' "Special Report," said that Obama's actions reeked of politics.
"These are not adjustments or transitions," he said. "These are political decisions to minimize the impact leading up to an election. And it's changing the law in a way that you are not allowed to do.
"This is stuff 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 on any provision."
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Sandefur said it was important to note that the president was not actually changing the law, but rather instructing his subordinates to ignore violations of the law.
"The law is not changing," Sandefur said. "He's saying 'I will look the other way while you violate the law.' It's a very important difference that doesn't resolve future legal problems caused by these delays. What look like extensions of deadlines are not actual extensions."
Sandefur added: "In my opinion, this is an outrageous attack on the principle of the rule of law itself, this long chain of altering government policy. Just saying he will allow people to violate the law because he thinks that is more convenient, that is far more dangerous to anything in this country than anything in Obamacare."
Sandefur and his non-profit law firm are representing plaintiff Mark Sissel, an Iraq War veteran and small business owner, who filed a federal lawsuit in 2010, "Sissel v. U.S. Department of Health and Human Services," arguing that the Obama administration violated the Constitution's "origination clause," which stipulates that all bills raising revenue must start in the House of Representatives.
Fitton said Republicans share some of the blame by not playing their cards right.
He told Newsmax: "This is political positioning. He obviously thinks the Republicans are hapless in the face of his lawlessness."
Fitton added that Republican leadership has been largely silent in calling out the president's motives.
"[Speaker John] Boehner's response was, 'This is a corporate tax break.' What about families? The response should have been, 'This is against the law and we're going to do everything in our power to stop it,'" Fitton said.
"They could have defunded Obamacare, but they are not going to do that," Fitton said of GOP lawmakers. "They could defund efforts to rewrite Obamacare. They could constrain the president through the withholding of spending, but they decided not to do that because they are afraid of shutting the government down.
"When you tell the other side that they were not going to use a key weapon in their arsenal, they've defanged themselves."
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