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Delay in Healthcare Employer Mandate

Once again the Obama administration has delayed the “employer mandate” in the Affordable Care Act of 2010. The employer mandate generally requires that employers with 50 or more employees provide health benefits to its employees or face a monetary penalty. It was originally supposed to go into effect at the beginning of 2014, but it was first delayed to 2015. It is now being delayed to 2016.

Questions abound regarding the political motivations behind the move and the constitutional authority of the president to unilaterally delay the mandate. Can the president change/amend what the legislature passed? What would happen in a court challenge? Because of jurisdictional requirements, it is unlikely that the question can be reached by a federal court.

Constitutionally, federal courts can only hear disputes if it is a “case or controversy.” Therefore, in order to meet the standing element of the “case or controversy” requirement, a plaintiff must allege, among other things, a personal injury that is particularized, concrete, and otherwise judicially cognizable. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). It will be a difficult (if not impossible) sell for an individual plaintiff to claim that he/she suffered a concrete personal injury because delaying the imposition of a mandate has caused him/her harm, especially if the plaintiff is a business owner to which the law applies.

Would members of Congress have standing by arguing that they have a direct and adequate interest in maintaining the effectiveness of their votes? Such an argument was advanced by members of Congress in Raines v. Byrd, which dealt with the Line Item Veto Act of 1996. The Supreme Court rejected that claim, stating that the alleged institutional injury was wholly abstract and widely dispersed; moreover, the Supreme Court was reluctant to use the judicial process as a substitute for the legislative process. And stepping aside from the legal issues, it may be practically unrealistic to expect opposing Senators to file a suit challenging a delay with which they may agree.