The WasteWatcher: The Staff Blog of Citizens Against Government Waste

The Article One President Strikes Again

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


On Monday afternoon the Obama administration issued the final regulation for the implementation of the employer-shared responsibility provisions under the Affordable Care Act, better known as Obamacare. The regulation again delays the employer mandate to provide health insurance to employees and corresponding fines for non-compliance until 2015 or 2016, depending on the size of the employer.

Here’s a synopsis of the new regulations issued by the Treasury Department:
• Small Businesses with fewer than 50 employees (about 96% of all employers): Under the Affordable Care Act, companies that have fewer than 50 employees are not required to provide coverage or fill out any forms in 2015, or in any year, under the Affordable Care Act. [Note: This has always been the case within the law.]
• Larger employers with 100 or more employees (about 2% of employers): The overwhelming majority of these companies with 100 or more employees already offer quality coverage.  Today’s rules phase in the percentage of full-time workers that employers need to offer coverage to from 70 percent in 2015 to 95 percent in 2016 and beyond.  Employers in this category that do not meet these standards will make an employer responsibility payment for 2015.
• Employers with 50 to 99 employees (about 2% of employers): Companies with 50-99 employees that do not yet provide quality, affordable health insurance to their full-time workers will report on their workers and coverage in 2015, but have until 2016 before any employer responsibility payments could apply.
This is the second delay by the Obama Administration in implementing the employer mandate to provide health insurance. Last July the administration announced through the Treasury Department blog that the employer mandate was put on hold until January 2015. The law states that employers with 50 or more full-time employees that do not offer healthcare insurance coverage must do so by January 1, 2014 or pay a fine.

No doubt one of the main reasons for the second delay is the administration's and vulnerable Democrats' concern on how employers will react to the high cost of the Obamacare mandates to their business. Some may choose to lay-off employees or reduce their employees' working hours to less than 30 per week to get under the 50 full-time employees threshold. Others that already provide insurance and believe they cannot afford the new mandated benefits could drop the coverage and instead pay the $2,000-$3,000 fine per employee.  Many of these decisions would be occurring throughout the year and especially coming to fruition around October, just a month away from the November Congressional elections.

It was a bit surprising the administration made this announcement on a Monday. Normally notices that will receive criticism are held back until late on a Friday afternoon; especially so before a long weekend. But rumors have been swirling around Washington for more than a week that a further delay in the Obamacare mandate for employers was forthcoming so perhaps the administration decided to get ahead of a possible leak.

How many times has the president unilaterally changed the healthcare reform law? Depending on where you get your information, the number will vary. The New York Times reports “the Obama administration has made a series of major changes to the health care law, many in response to the troubled rollout of Healthcare.gov” and lists thirteen changes within the past year.

Grace Marie Turner of the Galen Institute, a health and tax policy research organization that CAGW coalesces with on many issues, believes 18 changes have been made by presidential dictate alone since final passage. While the Times and the Galen Institute agree on many of the changes, here are some notable ones I pulled from the Galen list that the Times did not mention:

  • Medicare Advantage Patch: The administration ordered an advance draw on funds from a Medicare bonus program in order to provide extra payments to Medicare Advantage plans, in an effort to temporarily forestall cuts in benefits and therefore delay early exodus of MA plans from the program. (April 19, 2011)
  • Congressional opt-out: The administration decided to offer employer contributions to members of Congress and their staffs when they purchase insurance on the exchanges created by the ACA [Affordable Care Act/Obamacare], a subsidy the law doesn't provide. (September 30, 2013)
  • Subsidies may flow through federal exchanges: The IRS issued a rule that allows premium assistance tax credits to be available in federal exchanges although the law only specified that they would be available “through an Exchange established by the State under Section 1311.” (May 23, 2012)

The Galen Institute also lists a total of 35 changes to Obamacare; some instituted by Congress and some by the Supreme Court.

Meanwhile, the House Energy and Commerce Committee issued a press release listing 21 Obamacare delays the administration has invoked in the past six months. The purpose was to remind Americans it has also been six months since the House voted for H.R. 2668, the Fairness for American Families Act in order “to protect the American people from the president’s broken health care promises, providing all Americans relief from the law’s individual mandate.”

But this latest delay and change to the law has also angered many of the president’s staunchest supporters.  National Journal's Ron Fournier stated the following in his column“Why I’m Getting Sick of Defending Obamacare."

It's getting difficult and slinking toward impossible to defend the Affordable Care Act. The latest blow to Democratic candidates, liberal activists, and naïve columnists like me came Monday from the White House, which announced yet another delay in the Obamacare implementation.

For the second time in a year, certain businesses were given more time before being forced to offer health insurance to most of their full-time workers. Employers with 50 to 99 workers were given until 2016 to comply, two years longer than required by law. During a yearlong grace period, larger companies will be required to insure fewer employees than spelled out in the law.

Not coincidentally, the delays punt implementation beyond congressional elections in November, which raises the first problem with defending Obamacare: The White House has politicized its signature policy.

Well, welcome to the real world Mr. Fournier!  Obamacare has been politicized since the day it was introduced into Congress.

The president has changed Obamacare several times without Congressional approval and CAGW has written about this before in a prior blog. We are particularly concerned that the president is setting precedent that it's alright to dodge the Constitution at will and exceed his role as head of the Executive Branch.

The only shining light in all this is that President Obama may give millions of Americans what they want and are seeking and that is complete repeal of Obamacare.  And he will use just his pen to do it.

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