(Bloomberg) – The Obama administration’s repeated postponement of Patient Protection and Affordable Care Act (PPACA) rollout deadlines has sparked accusations from Republicans that officials are straying into dangerous territory by rewriting the law.
But the Obama administration is not the first to follow its own timetable instead of the one passed by Congress.
From pollution controls and maritime safety rules to financial regulations, delaying enforcement of new laws has become common for presidential administrations, including those of Ronald Reagan, Bill Clinton and George W. Bush, even in the face of statutory requirements and frequent outcries.
Deadlines set in laws are “aspirational dates,” said Ross Baker, a political science professor at Rutgers University.
“From a strict rule-of-law perspective, it’s not good,” Baker said. “There ought to be precision, finality.” Still, he said, occasional delays in enforcement of complex legal changes “build a certain amount of flexibility into the system.”
The latest uproar came after the administration’s Feb. 10 decision to wait until 2016 to levy fines on companies with fewer than 100 employees that fail to provide health insurance.
House Speaker John Boehner, an Ohio Republican, said it was akin to “rewriting law on a whim.” Columnist Charles Krauthammer derided the move as “stuff you do in a banana republic.” Said Krauthammer, “It’s as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision.”
The PPACA delay means many small businesses won’t face immediate pressure to comply with the employer mandate in the run-up to this year’s congressional elections. Republicans are using the troubled rollout of PPACA, which passed in 2010 solely with Democratic votes, against Democratic candidates in the campaigns for the Nov. 4 election.
Yet the action was within the Treasury Department’s discretion to set rules on new taxes, said Steve Johnson, a professor of tax law at Florida State University.
The Obama administration’s actions are “far from unprecedented,” said Johnson, a former senior attorney for the Internal Revenue Service, which issued the rule last week. “If it ever got into court, the court would be likely to uphold this delay.”
The administration has repeatedly pushed back deadlines and adjusted rules to smooth the introduction of PPACA, Obama’s top legislative initiative.
The White House already put off the employer mandate once, granting a one-year reprieve last July for all companies from a 2014 deadline. In November, after protests from people whose individual insurance plans were being canceled, Obama asked insurers to renew the policies even if they didn’t comply with the law. Earlier, the administration delayed a new insurance marketplace for small businesses.
Some legal scholars are crying foul, arguing that the effect of all the administration’s regulatory decisions is to weaken PPACA.
“There is a pattern of this administration making ad hoc decisions to modify implementation of the law so as to soften its impact,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law in Cleveland. “It’s one thing after another of altering the way the law is implemented and not implementing it the way it was written or intended.”
Still, the administration’s decision breaks no new legal ground, said George Yin, a University of Virginia tax law professor and former chief of staff to Congress’s Joint Committee on Taxation. There are plenty of previous instances of the Treasury Department delaying enforcement of a tax provision beyond a deadline set by Congress, he said.
Yin cited as “analogous” a one-year delay the Treasury Department made in enforcement of a requirement that brokers report the cost basis on investments, postponing coverage of options and debt instruments until this year.
The department holds off on enforcing tax provisions in what he called unusual cases, typically because they raise complex questions about who should be covered or how they should comply.
“In that case, what Treasury has done in the past is delay the consequence, the penalty, that should apply,” Yin said. “From what I can tell, that’s exactly what has happened now.”