“We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively,: says the U.S. Treasury spokesman about the Obamacare employer mandate.

I’ll bet they have.  When Sen. Max Baucus said implementation of his health care fix was becoming a “train wreck,” a lot of us nodded our agreement.  He was a key figure in the federal health care legislation that has stayed atop the news cycle since it was (I almost said “negotiated”) debated in Congress and started generating town hall meeting attendance never before seen in this country.

Buried in the pre-Fourth of July holiday regulatory detritus was a notice that the administration was going to miss another deadline, which is not exactly cocktail party conversation in most of the country.  But this is a deadline that companies in this land have apparently spent billions of dollars and who knows how much time preparing for, even though they haven’t gotten much guidance from the government until relatively late in the compliance cycle.  This is a part of the law that the U.S. Supreme Court upheld in the face of a legal challenge by the National Federation of Independent Business. The Gallup organization has published a poll indicating that 41 percent of small businesses it surveyed already have reduced the number of employees in their business, frozen hiring, or both, in contemplation of this deadline.

After winning in the highest court in the nation, the president decided that it was too unpopular a feature of his signature accomplishment, and he’s just not going to do it. (At least, until after the midterm elections?) What’s going on here?

There’s more.  The administration had already decided not to enforce the individual mandate penalties for those people who would have been eligible for Medicaid coverage in states like mine (Ohio). But the Legislature, after hearing all the evidence, has thus far decided not to expand the program. Moreover, the law doesn’t provide for the imposition of penalties in states that haven’t set up exchanges, but the IRS is said to be planning to do just that

The latest tweak was the notice earlier this week that applicants’ reporting of “household income” — which governs the subsidies and which the IRS has no way to establish from its own records — will be done on the honor system.  So now, the administration decides, no matter what Congress passed and the Supreme Court upheld, there will be no verification of income or employer coverage when people apply to the exchanges.

The pressure on businesses is now overwhelming to drop health care coverage and dump their employees into the exchanges, as pointed out this week by Grace-Marie Turner of the Galen Institute in National Review Online.

Beyond that, we have a growing and serious problem in this administration.  I don’t think they will take back his Nobel Prize or anything, but the president doesn’t have the authority to decide which laws his administration will enforce and which his administration won’t.  When his Justice Department famously decided that intimidation of white voters in Connecticut was not worth prosecuting, it may have been bad optics, but prosecutors have always discretion to decide whether or not to prosecute a violation of the law.

This is different. No prior president has ever claimed the power to “negate a law that is concededly constitutional,” according to Stanford law professor and former federal appeals court judge Michael McConnell, writing this week in the Wall Street Journal.  “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes,” wrote Justice John Paul Stevens in a 1998 Supreme Court decision.  The Patient Protection and Affordable Care Act contains no language which authorizes or allows the administration to suspend, delay or repeal, according to McConnell, and I will take his word for it, since I haven’t read the thing.

McConnell cites other non-health care examples of this contrived power, like the suspension of deportation proceedings against 800,000 or so illegal immigrants who were thought to have followed the basic criteria set out in President Obama’s proposed Dream Act, which technically the congress never passed.  When this happened last year, the administration cited legal authority having to do with prosecutorial discretion, as mentioned above.  No legal authority has been cited for the upending of the employer mandate.

There is a tendency to dismiss arguments claiming a lack of authority to do something that is popular, like deferring the employer mandate, or relieving folks dropped from insurance provided by their employers from having to document their income to get a benefit provided by the taxpayers.  There is also a profound and corresponding lack of interest in recovering the people’s money when it is improperly spent, even though the U.S. Government Accountability Office is certain that billions of it is misspent every year.  These have been bipartisan problems for a very long time, and are clearly playing havoc with the ability of congress to be responsible for the future of the country whose laws they write.

When the manager of the federal government claims the ability to ignore statutes which simply contain policy with which he disagrees, however, we have deep problems. We were already into new territory politically when a major law was enacted by Congress without any Republican votes.  To watch an executive who acts as if the law is malleable according to his political needs is a frightening experience to someone who has studied government at short-range for forty-five years.

Mark the difference.  As Speaker Boehner suggests this week that it might be necessary to lift the individual mandate as well, to keep the administration’s recent actions from putting even more financial pressure on families, he is talking about passing legislation.  This is the traditional way to fix unintended consequences, and it has worked reasonably well for centuries.

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