NEJM Features Discussion of ACA Delays

By Jeremy Kreisberg

The New England Journal of Medicine features two excellent articles discussing the legality of the Obama administration’s various delays of provisions of the ACA.  Unlike a great deal of the debate over this issue, these articles are nuanced and measured, and I highly recommend them.

Nicholas Bagley, a Professor at the University of Michigan Law School (and the author of a terrific new article in the Harvard Law Review), contends that the delays “appear to exceed the traditional scope of the President’s enforcement discretion.”  He distinguishes the ACA delays from traditional enforcement discretion, such as the discretion to allocate resources in a sensible manner, in part because the ACA delays were made public and therefore served the purpose of encouraging regulated parties to violate statutory requirements.  While Bagley admits that the administration has some support for its delay of the employer mandate in the IRS’s longstanding practice of affording “transition relief” to taxpayers from newly imposed taxes, he notes that transition relief has typically been brief and covered taxes of “marginal importance.”  Finally, Bagley argues that the Obama administration’s ACA delays set a “troubling precedent” for future administrations that may be hostile to the law and desire to use similar levels of “enforcement discretion” to decline to enforce portions of the ACA that are “essential to the proper functioning of the law.”

Timothy Jost, a Professor at Washington and Lee University School of Law, and Simon Lazarus, Senior Counsel at the Constitutional Accountability Center, argue that the ACA delays are not refusals to enforce the law, but rather are unexceptional timing adjustments that Democratic and Republican administrations have historically used when implementing new, complex regulatory schemes.  For recent precedent from the Republican Party, Jost and Lazarus point to the George W. Bush administration’s decisions to delay or limit enforcement of various provisions of the 2003 Medicare Modernization Act.  And while they find no legal issues with the ACA delays as a matter of administrative law under Heckler v. Chaney or constitutional law under the Take Care Clause, they are careful to distinguish the plans of 2012 Republican candidate Mitt Romney to suspend enforcement of (at least certain parts of) the ACA.  Those plans, they write, “would have been the kind of diktat that King George III had imposed on the pre-Revolution colonies and that the framers of the Constitution were intent on denying to the new American presidency.”

Hyperbole aside, I tend to agree with Jost and Lazarus on the constitutional question — that an administration acts within the bounds of the Take Care Clause when it exercises enforcement judgment “with fidelity to the overall statute and the purposes of Congress in enacting the underlying law[].”  To be sure, there are some interesting administrative law questions associated with statutory deadlines.  But as a constitutional matter, I think there is a significant difference between (1) an administration that is acting contrary to the text of the ACA in an effort to make the law function properly (i.e., the Obama administration), and (2) an administration that is acting contrary to the text of the ACA in an effort to make the law fail (i.e., the hypothetical Romney administration).  By drawing this distinction, it seems to me that Jost and Lazarus are picking up on a promising new line of thinking in the area of the Take Care Clause — motive analysis.

In an article forthcoming in the Michigan Law Review, Jeffrey A. Love and Arpit K. Garg provide a persuasive defense of motive analysis in separation-of-powers questions.  Love and Garg argue that while presidential inaction can create functional separation-of-powers problems, “not every instance of inaction is constitutionally problematic.”  To identify those instances that are problematic, Garg and Love propose three inquiries: (1) whether the level of enforcement failed to meet some statutory baseline; (2) whether the President has a constitutionally justified rationale for failing to enforce; and — most importantly for our purposes — (3) whether there is evidence to suggest that inaction is the result of the President’s own policy preferences.  The authors elaborate: “Just as a court looks to extrinsic factors to divine the intent of the actors in a suit alleging unconstitutional discrimination or a crime, evidence of a President a priori preferences can demonstrate the true motivations behind presidential inaction.”  Using this brand of motive analysis, Love and Garg explain that, because the delay of the employer mandate was “meant to serve the goals of the enacting Congress . . . it would seem odd to call this impermissible inaction.”

This type of analysis is not without problems.  First, how are we to divine Congress’s broader goals?  Adherents to a strictly textual view of statuary interpretation would likely argue that Congress’s goals are only what is expressed in the text, and a statutory deadline for a portion of the law is powerful evidence that Congress did not want the administration to delay that portion of the law.  But that view is practically troubling; Congress sets unrealistic statutory goals for agencies quite frequently (often due to resource constraints, imposed by Congress), and it seems normatively desirable to allow agencies some discretion to enforce laws in accordance with changing, unforeseen circumstances.  Second, courts and legal scholars have long been resistant to ascertaining the motive of political actors, and the President is likely no different.  But it seems to me that by ignoring the clear differences between an administration trying to make a law work better and an administration trying to make a law fail, we would be adhering to an unnecessarily formal view of the law that ignores our natural intuitions over what type of executive actions (or inactions) are truly concerning.

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