(Bloomberg) President Barack Obamas repeated postponement of deadlines in the rollout of his health care overhaul has sparked accusations from Republicans that hes straying into dangerous territory by rewriting the law.
Hes not the first president to follow his 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 presidencies, 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, its 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 administrations 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, Its as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision.
Yet the action was within the Treasury Departments discretion to set rules on new taxes, said Steve Johnson, a professor of tax law at Florida State University.
The Obama administrations 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 rocky rollout of the health care law, Obamas 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 didnt 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 administrations regulatory decisions is to weaken the Affordable Care Act.
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. Its 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 administrations decision breaks no new legal ground, said George Yin, a University of Virginia tax law professor and former chief of staff to Congresss 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, thats exactly what has happened now.
The 2010 health care law requires that employers with 50 or more workers provide insurance to their employees, and levies fines of as much as $3,000 per worker on companies that dont comply. The rule announced last week gives businesses with fewer than 100 employees another year to conform.
Throughout the government, deadlines imposed by law have been far from ironclad.
Regulatory agencies have missed 132 of 280 statutory deadlines in the Dodd-Frank financial-regulatory law passed in 2010, according to a Feb. 3 analysis by the law firm Davis Polk.
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