Patterico's Pontifications


Does the Law Require Obama to Collect the Employer Mandate in 2014 or Not?

Filed under: General — Patterico @ 7:40 am

Increasingly, these days, it’s impossible to get even the simplest of facts by reading media pieces. For example, does the Obamacare law require the employer mandate to begin in 2014 or not?

Michael McConnell in the Wall Street Journal:

The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.” Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.

I started to pen a similar about the rule of law the other day, in this post, and then noticed this passage from this article:

The 2010 Patient Protection and Affordable Care Act allows the Obama administration to set the starting date for the employer coverage reporting requirement that’s the linchpin of the mandate. The administration had not yet announced a date, one of the officials said. Still, enforcement of the mandate had been widely expected to begin in 2014, the official said.

Again, people are entitled to their own opinions, but what are the damned facts?

It would not surprise me in the least if McConnell is right, but I would like to know.

If he is right, by the way, it’s not the first time the law has been ignored:

This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.

Your mission as readers is to find an authoritative answer to this question. Behold the power of distributed intelligence! Go!

64 Responses to “Does the Law Require Obama to Collect the Employer Mandate in 2014 or Not?”

  1. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.”

    This seems fairly clear.

    JD (b63a52)

  2. Can’t even hold elected officials accountable anymore. These executive orders are getting more and more outrageous. The purpose of Congress is being completely circumvented.

    NaBr (a094a6)

  3. The statements by Michael McConnell and the Bloomberg news article don’t appear to contradct each other.

    One refers to the effective date of the law, and the otehr to the starting date for the employer coverage reporting requirement.

    It seems to refer to Section 1514 of the PPACA.

    Sammy Finkelman (d22d64)

  4. Ask Nancy Pelosi. She’ll be able to direct you to the relevant section of the law.

    aunursa (7014a8)

  5. The President quite clearly does not have to enforce Obamacare. In fact, he is required not to. The oath of office requires him to uphold the constitution, which Obamacare violates. The only constitutional way to resolve the conflict is to refuse to enforce this unjust law.


    Dustin (303dca)

  6. Sammy’s theory is appealing but the Obama Administration has clearly delayed the mandate itself and not just the reporting requirement. But an answer may be around the corner since the government has asked the court in the pending Liberty University case to change the expedited briefing schedule because of the mandate delay.

    DRJ (a83b8b)

  7. You will not question The Emperor!
    Lord Vader has spoken.

    askeptic (b8ab92)

  8. Is it time to trim the sails of Executive Orders?
    Would it be a positive step for the Congress, and the Several States, to pass an amendment to the Constitution calling for all EO’s to be submitted to Congress for consideration (2/3’rds vote affirmative in both houses?) before being allowed to go into effect?

    I can only imagine the explosion from the Oval Office if Congress were to pass such an Amendment and offer it to the States for ratification.

    askeptic (b8ab92)

  9. Remember they were all in a snit over signing statements;

    narciso (3fec35)

  10. Of course, my prescription in #8 assumes that an overwhelming majority can be found in both Houses who wish to govern from Capitol Hill, instead of just posing.

    askeptic (b8ab92)

  11. 6. Comment by DRJ (a83b8b) — 7/9/2013 @ 9:24 am

    Sammy’s theory is appealing but the Obama Administration has clearly delayed the mandate itself and not just the reporting requirement.

    This seems to be exactly their theory, and also what McConnell acknowledges, although it’s not fully fleshed out in their announcement.

    They say this is the blog post that announced it

    The ACA includes information reporting (under section 6055) by insurers, self-insuring employers, and other parties that provide health coverage. It also requires information reporting (under section 6056) by certain employers with respect to the health coverage offered to their full-time employees. We expect to publish proposed rules implementing these provisions this summer…. We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.

    Sammy Finkelman (d22d64)

  12. Sort of off-topic, but there’s a very interesting case that just came out of the 10th Circuit about the contraceptive coverage mandates of the ACA and the ability of for-profit corporations to avoid compliance by claiming a substantial burden to their sincerely held religious beliefs under RFRA.

    Leviticus (b98400)

  13. Hobby Lobby Stores, Inc. v. Sebelius. Interesting arguments about corporate personhood and the law of corporations more generally.

    Leviticus (b98400)

  14. Going back to the law it says:

    [Section 1513] d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.


    (a) IN GENERAL.—Subpart D of part III of subchapter A of chapter 61 of the Internal Revenue Code of 1986, as added by section 1502, is amended by inserting after section 6055 the following new section:


    ‘‘(a) IN GENERAL.—Every applicable large employer required to meet the requirements of section 4980H with respect to its full-time employees during a calendar year shall, at such time as the Secretary may prescribe, make a return described in subsection (b).

    What if the time is ….never?

    Because it’s never for the statistics for the year 2013.

    The fine can’t be properly assessed.

    I’m not sure where they get the authority to waive a fine or tax which is they are not able to assess correctly, but there may be some precedent for that.

    Sammy Finkelman (d22d64)

  15. The determination of which employers are covered in 2014 is based on employment statistics for 2013. This is the key fact. What businesses were to be affected in 2014 depended on what they did in 2013.

    That was what was causing a lot of businesses to be careful about hiring. They didn’t even know where they stood, so the lower the better maybe.

    The Administration, I think, calculates that only about 1% of all employees are employed by companies that are near the phase transition point, so if businesses know where they stand, then either they are too small to be covered or they are too big to reduce their workforce enough to come under the wire. And so employment won’t be much affected.

    But till now businesses didn’t plan, andD business groups didn’t alert their members. For too long they were hoping or expecting the Supreme Court to overturn Obamacare, and then Romney to be elected.

    And then when these things didn’t happen, they didn’t wake up. While they already knew before January 1, 2013, what the situation was going to be but at that point nobody was watching and recording their hiring. They didn’t understand.

    This will give businesses some four or five months notice so they can either adjust their payroll in 2014, or (more likely) decide that that won’t do anything.

    Sammy Finkelman (d22d64)

  16. This strikes me as a question like “how many angels can fit on the head of a pin.”

    Unless and until someone with standing objects, other than in newspaper editorials or blog entries, and is willing to take this administration to court over its continuous usurpation of Congress’s role and violations of the Constitution and law this exercise is pointless.

    If the case is clear, then where are the libertarian and conservative attorneys? I keep waiting for someone – anyone – to show some gumption and take on this administration, but nobody steps forward. As has been adjudicated in the case of AZ enforcing immigration law and the Prop 8 supporters defending the CA constitutional amendment, mere mortals have no chance in this Supreme Court to force these issues.

    in_awe (7c859a)

  17. Comment by DRJ (a83b8b) — 7/9/2013 @ 9:24 am

    But an answer may be around the corner since the government has asked the court in the pending Liberty University case to change the expedited briefing schedule because of the mandate delay.

    This is an argument that the case is unripe. I suppose this could get a court to pronounce on whether this delay is legitimate, that is whether or not someone is truly not vulnerable to the penalty, but it doesn’t have to.

    I don’t know if there is any case law relating to the question if a tax is liable if it can’t be calculated or if records were not maintained.

    The IRS did it over here:

    Sammy Finkelman (d22d64)

  18. Here’s another article dealing with the same sort of issue:

    Real Clear Markets Scrap Immigrant Taxes, Go For Amnesty Fee

    The issue of payment of back taxes matters not only because clear and workable tax rules are important, but also because undocumented workers’ payment of these back taxes is meant to settle their debt to society for violating the law.

    Payment of back taxes is not simple. It’s difficult for the Internal Revenue Service to compute back taxes for law-abiding Americans and resident aliens. It is even harder to calculate tax obligations for undocumented workers who have no W2s, no 1099s, and no records. The longer someone has stayed, the more complex the problem becomes, because that individual is likely to have had multiple employers.

    Maybe they needn’t have worried, because back taxes maybe wouldn’t be calculated more than ten years and it would only be ten years later into the law tghat they’d have to pay taxes. The truth is, that provision about back taxes was only suggested so as to stop the bill from working.

    Sammy Finkelman (d22d64)

  19. The Democrats like Schumer knew that real back taxes would never be collected.

    Sammy Finkelman (d22d64)

  20. Fior D’Italia did not challenge the accuracy of the IRS assessment in United States v. Fior D’Italia, Inc. 536 US 238, and the IRS did use a pretty good method for calculating the employer’s share (average amount tipped)

    Sammy Finkelman (d22d64)

  21. Didn’t Mitt Romney promise to suspend Obamacare by executive fiat, day one of his administration?

    Dustin (303dca)

  22. There are somne other problems with the subsidy for the exchanges:

    First, the amount of the subsidy is ultimately determined by the income the employee reports for that year by the next April 15. The subsidy is only provisional until them. A person could wind up owing thousands of dollars.

    There is a proposal to amend the law by not having a clawback, but that’s on the back burner, and of course that lkeads to other problems. In the meantime the adminstration has dropped some of the checks they had in place that would tend to prevent people from winding up with tax debt.

    I said tend to, because I think anyone could project their 2014 income for whatever they wanted to anyway. But this would have tended to stop people – they would have had to assume they would lose or quit their job for instance (very plausible in the case of married pregnant women, or someone planning to go to school, for instance)

    Now, also they will put the question of whether (the right kind of) insurance is available from someones’s employer entirely on the honor system, because there is now no employer reporting requirement for 2014.

    It may make sense in some cases to claim it is not available because the cost on the exchanges may be cheaper than what the employer offers.

    Sammy Finkelman (d22d64)

  23. 21. Comment by Dustin (303dca) — 7/9/2013 @ 11:06 am

    Didn’t Mitt Romney promise to suspend Obamacare by executive fiat, day one of his administration?

    Well he did and he didn’t. I remember he said something like that, and that nobody in the media seemed to have asked him about that, either, or it didn’t get much coverage. Maybe because they didn’t take that seriously. He just talked nonsense.

    It was only campaign rhetoric for the low information voter.

    Following last week’s Supreme Court decision upholding the Patient Protection and Affordable Care Act, or “Obamacare” as some refer to it, Mitt Romney said “What the Court did not do on its last day in session,” adding, “I will do on my first day if elected President of the United States. And that is I will act to repeal Obamacare.” He doubled down on the rhetoric in a new campaign ad (video below) with the slogan, “Day one. Job one. Repeal Obamacare

    I don’t know if Romney ever said precisely what he would do. Was it a claim that
    a President Romney could get a repeal through Congress, maybe through a budget reoslution? A claim he would get rid of it within a few weeks or months?

    If it on Day One it would sound like he would do it by executive fiat. But if by executive fiat, you don’t use the word “repeal”

    Sammy Finkelman (d22d64)

  24. We are sinking slowly but surely in a legalistic swamp of Dickensian proportions.

    Bob Schieffer (be0117)

  25. I see Romeny said:

    I will act to repeal Obamacare

    Yes, a president can do that on his first day.

    He can send a message to Congress requesting it repeal Obamacare. That’s an action.

    It should also be noted that Romney only wanted to repeal “Obamacare”, the law, but not the individual mandate. Making any kind of a change in the law would qualify as repelaing Obamacare, and Romney would have settled for whatever he could get quickly. At least until it began to boomerang.

    The campaign ad said:

    “Day one. Job one. Repeal Obamacare

    What does that mean?

    It’s his top priority. Job one

    So he wasn’t really promising to get rid of Obamacare the first day. Just trying to sound like he was promising that.

    And the promise also only applied to Obamacare the bill, not many of the provisions in it many people hated.

    Sammy Finkelman (d22d64)

  26. His Royal Highness announced that he will not enforce a law until 1/1/15. That edict does not rescind the law. Then, when the affected businesses act based on non-enforcement, he can change his mind again late next year and impose fines effective 1/1/14 – as the law already provides for. Voila – new “tax” (per John Roberts) revenue. And estoppel does not apply.

    Civil Resource Manual, U.S, Justice Department
    209 “The general rule is that the federal government may not be equitably estopped from enforcing public laws, even though private parties may suffer hardship as a result in particular cases.”

    David (099e1f)

  27. It’s his top priority. Job one

    Ah. Well that’s a lot different than a promise to actually shut Obamacare down day one.

    Dustin (dfe6b6)

  28. 26. But Congress would be outraged. Even a 2/3 majority and more. So Obama won’t do it.

    And some other president probably wouldn’t try that, or get away with that, either, before the Statute of Limitations expires.

    It may be more political constraints than legal constraints, though.

    Also, without the data you can’t really impose the fines.

    Sammy Finkelman (d22d64)

  29. Obamacare is not intended to work any better than Romneycare didn’t. Obama hopes to pass the electoral consequences off a little longer, but it is fully understood that Obamacare will lead to cries for single payer.

    Dustin (dfe6b6)

  30. The GOP’s rush to amnesty stymied by a lawless Admin.

    We’ve given up on government’s having any purpose other than its continued existence.

    gary gulrud (dd7d4e)

  31. Sammy linked the government’s announcement here. I read it to say the reporting requirement is suspended for 2014, and thus the IRS won’t have the information it needs to assess and collect the tax due.

    Thus, as Sammy also suggests above, it sounds like the Administration has waived the reporting requirement as the Affordable Care Act allows it to do, but has also waived the mandate because the tax created as a result of the mandate cannot be assessed without the reporting requirement. I assume the authority for waiving the tax/mandate is the difficulty posed in assessing the tax — and not any provision in the Affordable Care Act. This is ironic because the IRS assesses (estimates) and demands payment for taxes every day that cannot be specifically calculated because of problems with record-keeping by an employer or taxpayer. There’s no reason the IRS can’t estimate the ObamaCare tax as well, so there’s no reason to waive the tax or mandate.

    Thus, IMO, the issue is how much latitude the IRS has in deciding what taxes to collect (or not collect) and what taxes it can waive.

    I suppose the Administration could have said the mandate would remain in place but the IRS would defer assessing and collecting the tax for 2014 until the reporting requirement takes effect, and then retroactively calculate the tax. (In fact, the linked announcement asks employers to voluntarily file the required reports in 2014 to help the IRS get ready for 2015, so in theory the Administration could have waived the reporting requirement but left the mandate and tax in effect.) However, I think the Administration realizes deferring the tax to 2015 would create in even bigger bureaucratic and political nightmare than ObamaCare already presents.

    DRJ (a83b8b)

  32. Is there a Czar in the WH with oversight responsibility for the IRS?
    If so, that’s who we should be looking at for what is going on over there.
    After all, it’s not like the IRS is a bunch of cowboys doing their own thing (well, except in Cincy).

    askeptic (b8ab92)

  33. The IRS has authority to waive some taxes by entering into a settlement agreement with someone who owes delinquent taxes. (See, for example, the Fresh Start installment program begun under President Bush and expanded by President Obama.) But the IRS’s power to compromise and settle delinquent taxes is allowed by federal statute, and the executive can only establish the settlement procedure.

    DRJ (a83b8b)

  34. Well, DRJ, that’s with a regular “executive”, something we haven’t had since the morning of Jan. 20th, 2009.

    askeptic (b8ab92)

  35. I wish George W. Bush had nominated McConnell to the Supreme Court in lieu of John Roberts. He is rumored to have been on the short list at the time.

    That’s a great column he wrote for the Wall Street Journal.

    Elephant Stone (6a6f37)

  36. If the law says “the agency shall…” in numerous places, as it’s said, to formulate policy and regs and rules, does that mean the Chief Executive has the power to do it instead?

    I’m asking b/c I’m sure it NEVER says “the president shall…”

    This is the most dangerous thing he’s done. Along with the massive dependency on government he’s brought about, I don’t see how we get out of this mess.

    Patricia (be0117)

  37. I guess Nancy Pelosi was telling the truth…we’d have to pass the bill in order to really find out what’s in it.

    Elephant Stone (6a6f37)

  38. It’s obvious by now that 0bama pretty much does as he pleases vis-a-vis “the law”. With a brain-dead lapdog media in collusion with this criminal junta, a DOJ that should be brought up on RICO charges, who will stop it? Over 200 years of a divinely inspired Great Experiment down the toilet at the hands of one incompetent, narcissistic, ne’er-do-well.

    Colonel Haiku (71375e)

  39. I have a whole list of laws I have now suspended and/or delayed obeying, as I am a sovereign citizen with inherent rights, regardless of what laws they pass.

    I’m just going with the flow, man.

    Colonel Haiku, we’ve been headed for where we are since the 60s. Obama just gets to be the trigger puller after decades of groundwork by the Progressives.

    SGT Ted (eed28b)

  40. This isn’t the first time this President has unilaterally decided not to execute laws Passed by Congress. Failure to execute laws is clearly an impeachabl defense. And, if Congrss doesn’t do anything to stop him, Congress is breaking the oath they also took. They should withhold funds to HHS– except this President would probably just take the money Congress appropriated for another agency.

    JoyO (8874bf)

  41. Obey traffic laws though, despite the utter breakdown of our Republic.

    Was told today Mr. Busig Raggarbil (not his real name) was DWI.
    I’m having a crummy time. Could be worse I guess but it’s bad enough.

    Sarahw (b0e533)

  42. Among other things I may have sprung a CSF leak.

    Sarahw (b0e533)

  43. Sorry to hear that SarahW. Until they tell you for sure, stay in bed and drink plenty of fluids. Seriously. Or are you already in the hospital?

    nk who has a hole in the head (875f57)

  44. take care of yourselves, both nk and SarahW.

    I guess I’ve been here a long time when all my favorite commenters start going decrepit on me.

    Dustin (dfe6b6)

  45. If any good comes out of this mountain of garbage, in particular the corresponding story of the IRS scandal, it would be for more and more Americans to no longer act bothered — or bothered at all — when learning someone has fudged on his/her taxes. Since we live in an age of dumbed-down standards and broken-down ethics, playing the role of the goody-goody about things like 1090 or 1099 forms truly is the height of being a dumb sucker and sap.

    I know a few years ago when I got wind of people playing loose and fast with their income taxes, I felt uneasy or sort of the same way I’d react if I learned someone had shoplifted a few small items from a local store. My gut reactions no longer respond in that manner.

    Mark (897d7b)

  46. you better shape up cause of i need a non-food stamp whore chicago trash president

    and my heart is set on you

    happyfeet (8ce051)

  47. omg SarahW my cheeky flippancy the other day may prove prophetic

    I hate it when that happens

    happyfeet (8ce051)

  48. I have practically no hope that either the judiciary or the Congress can do more than stalemate most of the Obama Administration’s lawlessness.

    The American voters sewed a nasty crop in November 2012 and we are bound to reap its bitter harvest without much respite through January 2015 at best. I wish I could be more optimistic, but I’m not.

    Beldar (ebbef1)

  49. Bah – homonymic brain fart. “Sowed” I meant. Mea culpa.

    Beldar (ebbef1)

  50. you didn’t even mention the fourth estate

    they could blow the lid off of nookie

    I saw it in a movie once

    happyfeet (8ce051)

  51. It is comforting, though, in a way to know that this SCOAMF could be given full dictatorial powers and not have a clue on how to implement them. Which is what is happening here. The ACA is not self-executing (sneering snort). It takes work, competent directed work, to put it into practice.

    nk (875f57)

  52. The law is whatever Obama says it is. We are no longer a nation of laws but of men.

    AZ Bob (c11d35)

  53. I sympathize with our alleged president. I intend not to comply with that law (PPACA) as well.

    Dave Surls (46b08c)

  54. An interesting issue but mostly a fools errand. Even if Obama is completely wrong and acting in disregard of the law it would never, ever be resolved prior to Nov 2014. And the GOP will do their usual mostly uninspiring, incompetent and arcane “attack”. The only real issue in 2014 is whether the Obama voters as described in this video will turn out, again:

    cedarhill (ea4baa)

  55. Beldar – who would have standing to contest this? Could a congresscritter? Would the Courts see this as a political issue, or a foundational legal issue?

    JD (c07979)

  56. 43. Ditto, mortality sucks for the duration. Youse both are much appreciated.

    gary gulrud (dd7d4e)

  57. Seems Succubus is on top of this unauthorized leaking:

    Pfc. Manning was clearly a fruitcake, so why dint anyone take notice? Why not notice Psych Hasan?

    Well because minorities are untouchable, no?

    gary gulrud (dd7d4e)

  58. The NSA was distracted, listening in on Roobs’ phone calls:

    gary gulrud (dd7d4e)

  59. New York Times story today on how one business was affected by this:

    The Shanty Grille, a 35-years in business seafood restaurant in Maryland, hovers around the 50 full time employee equiovalent threshold.

    The owner had been worrying about this for three years. They’re on track right now to make a profit of about $80,000, the first profit since the economic downturn began. I suppose that’s besides the wages the owner takes out.

    He estimates the law would raise his annual cost for insurance from $26,000 to about $62,000, or by $36,000.

    They have 85 actual employees. They already pay part of the coverage for 9 employees. (managers and chefs he really wants to retain) The plan is also open to employees who are willing to pay he full cost which is about $4,700 ths year, and one employee, a women in her 50s who is a waitress, has opted in.

    The owner himself, with his wife and children, is insured through another separate family business -a fish market across the street, incoporated separately, that does not have enough employees so that it would need to comply with the mandate.

    The owner said this gives him another year. If they fall below the threshhold, fine, and if not, they’ll have another year to figure out how to offset the costs. Most of his employees would rather have the $200 a month and put it on a bar bill.

    Using an Excel spreadsheet, he determined that for the year July 1, 2012 to June 30, 2013 (not a period with any significance in the law, but a good sample) he had 47 full time employees, down from 54 in the 2012 calendar year, which overlapped it. He had cut back some busboy hours in recent months and not replaces several employees who left, and he had several servers who worked just below the 130 hours per month that the law considers full time.

    He didn’t do that in an attempt to avoid the employer mandate, but just to reduce what he considered his above average labor costs. he was greatly releived he fell below but it also told him he couldn’t grow. “No more expansion” he said.

    While some employers would pay the penalty rather than pay insurance, the owner says he couldn’tt do that and he’d probably close first.

    The pantry chef, a 62-year old woman, is worried that under the new law her own coverage might become either more expensive or more limited.

    There is a young employee concerned about insurance, He is about to reach his 26th birthday. Next week.

    He has seen uninsured friends, incliding a co-worker at the Shanty Grille, who tore a knee ligament on a basketball court, have hige medical bills.

    He’s now starting a second job (and leaving this one – it’s not clear) because that other job comes with health insurance.

    The individual penalty next year for not having health insurance in 2014 will be 1% of adjusted gross income on their 2014 tax return per adult, with a minimum of $95. I think there’s also a maximum, and the tax/penalty is much bigger for 2015 and succeeding years.

    Sammy Finkelman (a4dbab)

  60. Beldar, I was going to ask you what size needle we used?

    askeptic (b8ab92)

  61. Beldar – did you just out yourself as a homonymophobe ?

    Their Gogh mai allusions !

    Alastor (e7cb73)

  62. Is Congress usurped when they pass a nonsensical and contradictory law they didn’t read, that was probably still being written after it was voted on? People may wonder what the original intent was of the lawmakers who drafted this bill. Their original intent was for Obama to do whatever he wanted, and they passed a bill designed to facilitate that.

    Congress has not been usurped as much as it has self-destructed, which suits Obama fine. It’s time to wake up. Passing laws is no longer meant to go with the rule of law. It is only meant to provide a semblance of legitimacy to the actions of those in power.

    Welcome to the new age.

    Amphipolis (d3e04f)


    Carney attempts to answer a question without understanding the legal point in the question.

    Sammy Finkelman (d22d64)

  64. last

    peedoffamerican (a84075)

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