In an opinion piece published in Tuesday’s issue of The Post and Courier, Congressman Mark Sanford dedicated most of his column to a “constitutional issue” that he claims “really hasn’t been discussed” but that he thinks “provides legitimacy to the Republican House’s attempts to delay the implementation of [the Affordable Care Act]” by holding the entire federal government hostage.
The issue about which Sanford professes to be so concerned is whether President Barack Obama had the constitutional authority to delay implementation of part of the ACA for one year — the mandate requiring businesses with more than 50 full-time employees to provide those employees with health insurance — while proceeding as scheduled with the coverage mandate for individuals. The White House announced the delay for the employer mandate back in July.
Contrary to Sanford’s assertion, the question of the president’s authority to temporarily postpone the employer mandate — a measure aimed at easing the transition for businesses — has been discussed widely by pundits and legal scholars alike. Though Sanford finds this issue to be so egregious that it “provides legitimacy” to shutting down the entire government, this week appears to be the first time he’s mentioned it publicly since the decision was announced nearly three months ago.
Back in July, Sanford’s colleague, Congressman Scott Garrett (R-N.J.) introduced a joint resolution on this very topic, H. Con. Res. 45, which begins: “Expressing the sense of Congress that President Barack Obama has violated Section 3 of Article II of the Constitution by refusing to enforce the employer mandate provisions of the Patient Protection and Affordable Care Act.”
The resolution has 21 Republican co-sponsors, including S.C. Congressman Mick Mulvaney. It seems that if Sanford were so bothered by this “constitutional issue,” he would have signed onto this measure as a co-sponsor, doesn’t it?
The Obama administration claims authority to issue the extension under Section 7805(a) of the Internal Revenue Code. In a letter to the chairman of the House Energy and Commerce Committee, Assistant Treasury Secretary Mark Mazur cites that federal statute and offers numerous examples of other such postponements issued by previous administrations.
Simon Lazarus of the Constitutional Accountability Center explains that “delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations” and that “the administration’s delay is well within the courts’ zone of tolerance under the Administrative Procedure Act.”
Even the Bush administration official charged with overseeing the implementation of President George W. Bush’s signature Medicare Part D law deemed the temporary postponement of the employer mandate to be advisable. In an opinion piece published by the Washington Post in July, Michael O. Leavitt, who served as Bush’s Health and Human Services Secretary, writes that the “[Obama] administration’s decision to delay the employer mandate was wise,” even though Leavitt personally opposes the ACA.
There is ample evidence that the Obama administration acted within the scope of its constitutional authority when postponing the compliance deadline for the employer mandate, but even if granting the extension did amount to plowing “new constitutional ground,” as Sanford claims, the proper means of adjudicating that legal question is in court — not in Congress.
In Tuesday’s op-ed, Sanford writes: “Our Founding Fathers were very deliberate in breaking up authority and power, and accordingly, gave to each branch of government different duties and responsibilities. Congress creates, the judiciary interprets, and the executive branch administers the law.” Sanford should get back to his job of passing laws, including the laws that fund the federal government, and leave interpreting the Constitution to the judiciary.
Laurin Manning is a Democratic digital and communications strategist based in James Island.