Delaying the Implementation of the Affordable Care Act

I have a question for health law folks or administrative law experts.  (I am neither.)  Exactly where is the Administration getting its legal authority to delay various provisions of the Affordable Care Act?  Does the statute have some catch-all provision that addresses this?  Do the particular provisions in question give HHS that power?  If it is not in the statute, then how can this be done?  Is impossibility a valid reason for delaying a statutory mandate with a deadline?

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7 Responses

  1. Joe says:

    One person (who opposes the law) said this when Prof. Adler (who thinks the Administration is making **** up left/right) talked about the issue:

    http://www.volokh.com/2013/08/12/judge-rejects-doj-motion-to-dismiss-oklahoma-suit-against-irs-tax-credit-rule/#comment-999005267

    [The **** is advised because Adler’s disdain is clear here.]

  2. mls says:

    It seems to me that the first question is whether the administration has produced any legal analysis justifying the various delays. I don’t know the answer to that question, but I know that the House Oversight Committee is trying to get the IRS’s legal justification for applying subsidies to federally-run exchanges.

    Meanwhile, I am still trying to get the Treasury Department to respond to my two-year old FOIA request regarding the Public Debt Clause.

    http://www.pointoforder.com/2012/06/03/seeking-section-four-transparency/

  3. Nicholas Bagley says:

    I’ve blogged on this several times over at The Incidental Economist. The most relevant post is here: http://theincidentaleconomist.com/wordpress/is-there-a-legal-argument-for-delaying-the-employer-penalty/

    So far as I’m aware, no one else has even made a cursory investigation of the administration’s justification.

  4. Mel's says:

    Thanks, Nicholas. I wonder what the IRS couldn’t justify under its authority to make “needful” regulations.

  5. ZZMike says:

    Since when has “legal authority” ever bothered this administration? The president enforces the laws he wants enforced, and ignores the ones he doesn’t.

    He decides, for instance, that the coup in Egypt is not a coup, so we can keep sending them a billion or so in foreign aid. He makes recess appointments when Congress is not in recess.

    Other examples abound.

  6. Frank Pasquale says:

    In the case of MLR ratios, a provision of the act granted discretion to the Sec’y of HHS to permit an adjustment to the 80 percent MLR standard for a State’s individual health insurance market if it is determined that applying this standard “may destabilize the individual market in such State.”

    http://www.cms.gov/CCIIO/Resources/Technical-Implementation-Letters/Downloads/Letter-from-the-Center-for-Consumer-Information.pdf

    I have not looked at the provisions regarding the recent punt on the OOP rules, but I would suspect similar language governs it. Many observers are disappointed or outraged:

    http://pnhp.org/blog/2013/08/13/complexity-of-catastrophic-cap-on-losses-causes-delay-in-full-implementation/

    http://www.correntewire.com/obamacare_clusterfuck_out_of_pocket_limits_delayed_for_the_convenience_of_insurance_companies_who

  7. David says:

    Implementation of affordable care act should be enforced immediately.But how? I say push a little political will harder.

    David of Dallas Brain Injury Attorney