What is an Implementation Analyst?

If Obama can delay the implementation of the employer mandate of Obamacare, could a future Republican president (or Romney, if he had been elected) delay the implementation of both the employer and individual mandates indefinitely?

• Why is the White House allowed to delay implementation of a law, and would a president who opposed the law have similar authority to delay the implementation indefinitely?

• Answer:

  Maybe.  It really depends on the specific legal "lever" in use.  In the current case (the employer mandate) there's a plausible case to be made that the Administration has the authority to delay it.  Of course, that doesn't mean their interpretation is correct. I'm not a lawyer, though I spend much of my professional life reading and interpreting health care law.  My initial reaction was much the same as yours - it's hard to imagine that the Administration could unilaterally waive sections of the tax law, right? But - and while this is speculative - it's entirely possible that they have the discretion to waive the reporting requirements associated with the employer mandate, which would make it impossible to impose the penalties and fees required. The administration hasn’t released its legal justification yet, so I’m speculating here. But the structure of Treasury’s http://www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx may provide a clue to its thinking. The memo frames its discussion around Treasury’s delay of the reporting requirements associated with the employer mandate, which are found in §6055 and §6056 of the Internal Revenue Code. Per those requirements, employers must submit tax returns that report on the health-insurance coverage that they do (or don’t) offer their employees. Those returns must be submitted, per §6055 and §6056, “at such time as the Secretary may prescribe.” Delaying the reporting requirements until 2015 is arguably just a specification of the “time” at which the reports must be submitted. (The ACA does contemplate that the reporting requirements would come into force “after December 31, 2013.” But that general effective date should probably give way to the specific instruction that the Secretary can adjust the timeframe.) So far, so good. Treasury then says that it’d be “impractical” to impose penalties for failing to adhere to the employer mandate because it won’t have the necessary information to do so. Now, that’s not a legal argument. The IRS can’t waive a tax penalty that Congress has imposed on employers just because that penalty is hard to administer. But maybe this is what the Administration has in mind: §1513 of the ACA, which imposes the employer penalty, is part and parcel of a comprehensive administrative scheme that depends on the new reporting requirements. Congress understood that the two go hand-in-glove: how can the IRS impose a penalty if the employer isn’t even obligated to file a tax return with the necessary information? In giving the Treasury Secretary the discretion to specify when those returns will be filed, Congress must also have given him the discretion to delay imposition of the tax penalties until those returns are in fact filed. That’s a plausible legal argument, especially given the http://scholar.google.com/scholar_case?case=14437597860792759765&q=chevron+v.+nrdc&hl=en&as_sdt=2%2C23 that Congress intends for agencies to resolve ambiguities in the statutes that they administer. Still, it’s far from airtight. Although the reporting requirements don’t go into effect until the IRS specifies when and in what form the reports should be filed, the ACA nowhere says that the penalty depends on whether employers have submitted reports under §6055 and §6056. Instead, the ACA is blunt that it “hereby impose[s] on the employer an assessable payment” for failing to adhere to the employer mandate. And the effective date of the penalty provision is categorical. The natural inference is that the penalty comes into force on January 1, 2014, whether or not the agency has the reporting machinery in place to administer it. This is probably the most straightforward reading of the statute, even if the competing interpretation is also reasonable. (Emphasis added, http://theincidentaleconomist.com/wordpress/does-the-administration-have-the-legal-authority-to-delay-the-employer-mandate-and-what-if-they-dont/) Nicholas Bagley, the linked author, a law professor at the University of Michigan, notes further that even if we were to assume that the Administration does not have the authority to delay this provision, it's very hard to imagine anyone who would have standing to challenge it. Obviously that's a legal evaluation, and in political terms, this delay is a painful admission for the Administration. As for the individual mandate?  I suppose it's possible that a future Republican Administration could change the reporting requirements to cripple the tax, but I'm not sure exactly what reporting is going to be in operation for individuals.  In any case, it's much easier to assess individuals than businesses.  But it's certainly possible in theory.