Experts are split over whether Obamacare delays were legal.

By Sam Baker

House Republicans might have a point about Obamacare’s employer mandate—they just can’t do much about it by suing the president.

The House is planning to sue President Obama (and, more to the point, the IRS) over delays in the health care law’s employer mandate. It took the first official step in that direction Wednesday, with a hearing in the House Rules Committee over a resolution to authorize the lawsuit.

As a whole, the legal world is pretty skeptical of House Republicans’ plan, largely because legal experts from both sides of the aisle doubt the House can clear a key procedural hurdle.

But what if it can? Legal experts are much more divided over the strength of the underlying case against the administration’s delays. Even some allies of the Affordable Care Act say Republicans have a solid argument that the delays were illegal, while others fear the case could strip future presidents of basic powers.

“I think it would make government unworkable,” said Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center. 

Lazarus said delays in the employer mandate are no different from any other administrative delay in implementing new laws, which are myriad. The Supreme Court has previously ruled that federal agencies can use their own discretion about how they allocate their finite resources, and agencies are also generally able to phase in new requirements as a way of making life easier for regulated industries and taxpayers.

Arguing that Obama didn’t have the authority to delay the employer mandate would implicate a host of other delays, Lazarus said.

He pointed to past instances in which the IRS has offered “transition relief” to phase in new reporting requirements. The Environmental Protection Agency has also slowed the release of new regulations while it gathered more scientific evidence and gave regulated industries more time to come into compliance—delays that benefited the business interests with whom Republicans are traditionally aligned.

“I don’t readily see a way of distinguishing all of those things,” Lazarus said.

But others aren’t so sure.

Nicholas Bagley, a law professor at the University of Michigan, said Boehner’s underlying complaint about employer-mandate delays seems to have some merit. Past examples of “enforcement discretion” aren’t quite comparable to delays in the employer mandate, he said.

Bagley drew a distinction between agencies failing to meet their own deadlines versus ignoring statutory requirements.

The Affordable Care Act said employers have to provide health insurance to their employees or pay a fine, and that requirement took effect Jan. 1, 2014. So, as critics of the delays see it, a tax liability kicked in Jan. 1 and is in place today, even if the IRS isn’t enforcing it.

The regulations EPA slow-walked didn’t work that way, Bagley said: There, Congress directed the agency to write regulations, and new environmental standards didn’t take effect until those regulations were issued. So, while it’s true that EPA missed Congress’s deadlines, it was a deadline imposed on EPA—not on the people EPA regulates.

“There’s a big difference between an agency failing to hit a deadline for doing something on its own … and it’s another thing altogether for an agency to waive a deadline for private individuals,” Bagley said.

Lazarus, on the other hand, said the GOP is overselling the administration’s actions. If it had said it never intended to implement a policy Congress passed, sure, that would be illegal, he said. But this was simply a delay—one designed to make sure the policy could be implemented well, in the long run.

“This is not a refusal to enforce, or a decision not to enforce,” he said. “It is a decision about phasing in enforcement.”

The IRS has delayed the employer mandate twice. The first one, announced in 2013, was an across-the-board delay, for everyone, designed to give employers more time to come into compliance with the new policy and to update their record-keeping systems.

And the White House appeared to give itself some legal wiggle room on that delay. It technically only delayed a reporting requirement for employers, which wasn’t tied to the Jan. 1 deadline. That delay made the mandate itself unenforceable, but by the letter of the law, it didn’t conflict with a statutory deadline.

Bagley said he’s skeptical of that rationale—transition relief is designed to give a regulated group more time to come into compliance, and the employer mandate had been on the books for three years by the time it was first delayed. But it’s an argument the administration could make.

The second delay is harder to justify, at least using the traditional rationale for transition relief, Bagley said. Earlier this year, the White House said it would delay enforcement until 2016 for midsized employers. Larger firms have to comply in 2015, but they have to cover only 70 percent of their full-time workers that year, and 90 percent after that, to avoid penalties. The law itself calls for 100 percent coverage.

Allowing employers to cover fewer employees doesn’t seem like a plausible response to reporting or record-keeping requirements, Bagley said.

“The second round of delays, it’s extremely difficult to see how they could be justified on that basis,” he said.

In short, Boehner might be onto something—if Congress imposed a specific tax liability on a specific date, and the IRS simply isn’t enforcing it for two years, and then only part of the way, there’s at least an argument to be made that the delays aren’t legal, Bagley said.

But that doesn’t mean Boehner’s lawsuit will accomplish much.

For starters, by the time it works its way through the courts, the employer mandate will probably be in effect.

Walter Dellinger, a former acting solicitor general, testified Wednesday that he didn’t think the case could make it to the Supreme Court before early 2016, meaning a ruling wouldn’t come before June 2016. The mandate would already be in effect by then, assuming it isn’t delayed further, so a ruling ordering the IRS to implement it wouldn’t be especially significant.

(Plus, Republicans will presumably be more focused on Hillary Clinton by then and less motivated to impeach Obama, which is what this is about in the first place.)

And that’s assuming the lawsuit can actually make it through the courts, which is a long shot. Although Bagley is skeptical of the mandate delays, he says it’s unambiguously clear that the House doesn’t have the legal standing to sue Obama. The case should be dismissed without a ruling on the delays’ legality, he said.

Dellinger and Lazarus also testified Wednesday that the House lacks standing. Dellinger warned that a decision allowing this lawsuit to proceed would open the floodgates for Congress and the president to take their political disputes to court—something the Supreme Court has actively tried to avoid.

Some conservatives agree on the standing issue.

“I think that makes it a difficult case; … it’s not clear how a dispute over enforcement of the law necessarily injures the House,” said Jonathan Adler, a law professor at Case Western Reserve University.