Are there any parts of Obamacare the president can't suspend?

[rangerrebew]

Are There Any Parts of Obamacare the President Can't Suspend?

Three Democratic senators can't answer the question.

7:47 PM, Jan 7, 2014 • By JOHN MCCORMACK



In the past year, President Obama has unilaterally suspended various parts of the Affordable Care Act whenever it's been politically convenient to do so.

Obama in Cairo


In July, the administration announced a one-year delay of the employer mandate, Obamacare's tax of up to $3,000 per employee on large employers that don't provide Obamacare-compliant health insurance plans to their employees. In November, the president responded to outrage over insurance cancellations by giving insurers and states the option to continue selling plans that Obamacare had made illegal.

The latest delay came on the evening of December 20, shortly after the U.S. Senate held its final vote of 2013, when Health and Human Services secretary Kathleen Sebelius declared in a letter that Americans who had their insurance plans canceled by Obamacare would not be subjected to law's individual mandate in 2014.

All of the delays have led critics of the law to ask some obvious questions: If the Obama administration can suspend the individual mandate for people who had their plans canceled, couldn't the next president suspend the mandate for everyone? Better yet, couldn't the next president suspend the entire law?

These are simple questions, but leading Democrats don't have any answers.

"I've seen the administration's argument as to why they have the authority to make those changes, and I don't challenge that," Senator Tim Kaine, a Democrat from Virginia, told THE WEEKLY STANDARD on Tuesday in the Capitol building. But the senator pleaded ignorance when asked if the president could suspend the rest of the law:


THE WEEKLY STANDARD: How do you determine if the president couldn't do something--that it does exceed his authority? Are there any parts of the law that the president doesn't have the authority to delay or suspend?

KAINE: I don't know. I'm not the scholar on that.

Scholarly expertise was of no help to Democratic senator Richard Blumenthal of Connecticut, a former state attorney general, who was similarly unable to answer the question: 


TWS: Are there any delays the president wouldn't have the authority to make? I mean, could the president potentially suspend the entire law if he wanted to?

BLUMENTHAL: I can't answer a hypothetical.

TWS: So you can't say if there are any parts of the law he couldn't delay?

BLUMENTHAL: I can't answer a hypothetical about any--

The Connecticut senator's voice trailed off as the doors closed on the senators-only elevator.

Senator Bob Casey, a Democrat from Pennsylvania, told THE WEEKLY STANDARD that he doesn't "know of any legal impediment" preventing the executive branch from delaying the employer or individual mandates.
 
"Either you want to make it work or you want to get rid of it," Casey said. "If you want to make it work you've got to put in place measures or strategies that will ensure that it does work over time. And sometimes that means going forward, and sometimes that means waiting for a more optimal time for something to move forward."

But couldn't a future president suspend the entire law? "I don't want to speculate what a future president might do," Casey replied.

If a Republican wins the presidency in 2016, Democrats won't need to waste much time speculating about what he will try to do to Obamacare. But they will need to come up with some arguments about why it's illegal.

http://www.weeklystandard.com/blogs/are-there-any-parts-obamacare-president-cant-suspend_773981.html

[Oceander]

The president can drag his feet and delay enforcement of certain parts of a law - executive discretion - but not, I think, all or a major portion of a law.

[rangerrebew]

The president can drag his feet and delay enforcement of certain parts of a law - executive discretion - but not, I think, all or a major portion of a law.

I always thought legislation was supposed to be specific.  If a bill gives someone the authority to change it as he/she sees fit, I don't know that it is a law under the original understanding of the Constitution.  That is simply giving an individual the authority to ignore congress.

[jmyrlefuller]

Apparently there is one: the individual mandate. That one is sacrosanct and must be defended to the point of shutting down the government.

[Oceander]

I always thought legislation was supposed to be specific.  If a bill gives someone the authority to change it as he/she sees fit, I don't know that it is a law under the original understanding of the Constitution.  That is simply giving an individual the authority to ignore congress.

Not at all.  Congress routinely grants the IRS broad discretion to promulgate regulations which, if and when promulgated, considerably alter the law as enacted by Congress.  Section 6011 of the Internal Revenue Code is a great example.  That section provides (in whole):

26 USC § 6011 - General requirement of return, statement, or list

(a) General rule
When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or with respect to the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms or regulations.

(b) Identification of taxpayer
The Secretary is authorized to require such information with respect to persons subject to the taxes imposed by chapter 21 or chapter 24 as is necessary or helpful in securing proper identification of such persons.

(c) Returns, etc., of DISCS and former DISCS and former FSC’s
  (1) Records and information
A DISC, former DISC, or former FSC (as defined in section 922 as in effect before its repeal by the FSC Repeal and Extraterritorial Income Exclusion Act of 2000) shall for the taxable year—
    (A) furnish such information to persons who were shareholders at any time during such taxable year, and to the Secretary, and
    (B) keep such records, as may be required by regulations prescribed by the Secretary.
  (2) Returns
A DISC shall file for the taxable year such returns as may be prescribed by the Secretary by forms or regulations.

(d) Authority to require information concerning section 912 allowances
The Secretary may by regulations require any individual who receives allowances which are excluded from gross income under section 912 for any taxable year to include on his return of the taxes imposed by subtitle A for such taxable year such information with respect to the amount and type of such allowances as the Secretary determines to be appropriate.

(e) Regulations requiring returns on magnetic media, etc.
  (1) In general
The Secretary shall prescribe regulations providing standards for determining which returns must be filed on magnetic media or in other machine-readable form. Except as provided in paragraph (3), the Secretary may not require returns of any tax imposed by subtitle A on individuals, estates, and trusts to be other than on paper forms supplied by the Secretary.
  (2) Requirements of regulations
In prescribing regulations under paragraph (1), the Secretary—
    (A) shall not require any person to file returns on magnetic media unless such person is required to file at least 250 returns during the calendar year, and
    (B) shall take into account (among other relevant factors) the ability of the taxpayer to comply at reasonable cost with the requirements of such regulations.
Notwithstanding the preceding sentence, the Secretary shall require partnerships having more than 100 partners to file returns on magnetic media.
  (3) Special rule for tax return preparers
    (A) In general
The Secretary shall require than  [1] any individual income tax return prepared by a tax return preparer be filed on magnetic media if—
      (i) such return is filed by such tax return preparer, and
      (ii) such tax return preparer is a specified tax return preparer for the calendar year during which such return is filed.
    (B) Specified tax return preparer
For purposes of this paragraph, the term “specified tax return preparer” means, with respect to any calendar year, any tax return preparer unless such preparer reasonably expects to file 10 or fewer individual income tax returns during such calendar year.
    (C) Individual income tax return
For purposes of this paragraph, the term “individual income tax return” means any return of the tax imposed by subtitle A on individuals, estates, or trusts.
  (4) Special rule for returns filed by financial institutions with respect to withholding on foreign transfers
The numerical limitation under paragraph (2)(A) shall not apply to any return filed by a financial institution (as defined in section 1471 (d)(5)) with respect to tax for which such institution is made liable under section 1461 or 1474 (a).

(f) Promotion of electronic filing
  (1) In general
The Secretary is authorized to promote the benefits of and encourage the use of electronic tax administration programs, as they become available, through the use of mass communications and other means.
  (2) Incentives
The Secretary may implement procedures to provide for the payment of appropriate incentives for electronically filed returns.

(g) Disclosure of reportable transaction to tax-exempt entity
Any taxable party to a prohibited tax shelter transaction (as defined in section 4965 (e)(1)) shall by statement disclose to any tax-exempt entity (as defined in section 4965 (c)) which is a party to such transaction that such transaction is such a prohibited tax shelter transaction.

(h) Income, estate, and gift taxes
For requirement that returns of income, estate, and gift taxes be made whether or not there is tax liability, see subparts B and C.

[1]  So in original. Probably should be “that”.

The general rule set out in subsection (a) is about as discretionary as it gets; in effect, when that language is read on its own, there is no law that requires anyone to file a return, there is only a law that says you must file a return only if the Secretary of the Treasury (i.e., the IRS) has issued regulations that say you must; until then, you don't have to.  Then there are the provisions in subsections (b) and (d) that give the IRS discretion to decide all on its own what sorts of information you will be required to provide to it.

Section 6012, which I will not quote because it's too darned long, does put more meat on the bones viz. income taxes because it does provide that certain individuals must make returns.  However, in the flush language at the end of section 6012(a), the IRS has discretion to exempt nonresident alien individuals and foreign corporations from the obligatory requirement to make a return.  That is, the IRS has the discretion to suspend the operation of section 6012 without having further recourse to Congress.

Permissive, discretionary grants of authority like this have been thoroughly reviewed by almost every court, including the Supreme Court, and are rarely found wanting.