07.08.2013 20

Obama’s extralegal ‘waiver’ of the employer mandate

By Nathan Mehrens

On July 2, Assistant Treasury Secretary for Tax Policy Mark Mazur announced in a blog post that the employer mandate (26 U.S.C.4980H) starting in 2014 to provide minimum coverage under the new health care will not be enforced.

There is only one problem. There is no waiver provided in this particular section for the “assessable payment” also defined as a “penalty” for failure to comply with the mandate.

That is significant because there are waivers that were built into the law for the taxes imposed for failure to meet minimal coverage and other requirements for group health plans, long-term care insurance contracts, Archer MSAs, pension plans, employer contributions to health savings accounts, and the excise tax on Cadillac plans.

Therefore, since waivers were allowed for under the law on everything except for the employer mandate, which was defined as an “assessable payment,” Congress did not intend for there to be any exception or waiver to the employer mandate penalties.

Which is likely one reason why in the blog post Mazur never actually calls it a “waiver.”

Instead, the post states the Obama Administration “will provide an additional year before the [Affordable Care Act] mandatory employer … reporting requirements begin… [for] certain employers with respect to the health coverage offered to their full-time employees.”

By delaying the reporting requirements, the effect is to render the fines levied under the employer mandate unenforceable: “We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.  Accordingly, we are extending this transition relief to the employer shared responsibility payments.  These payments will not apply for 2014.  Any employer shared responsibility payments will not apply until 2015.”

But 26 U.S.C. 6056, which provides for the employer reporting requirements, similarly does not include any waiver provision. It states reporting by employers is supposed to take place “during a calendar year… at such time as the Secretary may prescribe… [and]  is in such form as the Secretary may prescribe.”

Meaning at some point during the calendar year, the Secretary of the Treasury is required to give a deadline for the form to be submitted, and to provide the format for providing the information to the government. But that’s where the Administration’s discretion ends.

Therefore, the burden of compliance still falls, not on the government, but on the employer to provide the following information: “the name, date, and employer identification number of the employer; a certification as to whether the employer offers to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan; if the employer certifies that the employer did offer to its full-time employees (and their dependents) the opportunity to so enroll the length of any waiting period with respect to such coverage, the months during the calendar year for which coverage under the plan was available, the monthly premium for the lowest cost option in each of the enrollment categories under the plan, and the employer share of the total allowed costs of benefits provided under the plan; the number of full-time employees for each month during the calendar year; the name, address, and TIN of each full-time employee during the calendar year and the months (if any) during which such employee (and any dependents) were covered under any such health benefits plans, and such other information as the Secretary may require.”

Some reporting requirements under laws are onerous. This is not one of them. As far as reporting requirements go, employers could easily provide this information even if the Secretary never provided a form for them to submit, making Mazur’s justification for the delay completely fallacious.

He claims that delaying the reporting requirements is so the Administration may “consider ways to simplify the new reporting requirements consistent with the law” and “provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”

Adapting “reporting systems”? Like what? Opening a Post Office box for employers to mail their completed forms to? Giving Turbo Tax another year to create an electronic version of the form? Yeah right. The real rationale for the delay is completely political. How do we know?

The problem with the employer mandate is not the reporting requirements. It is adding employees working 30 hours or more to employer-provided health care rolls, and the rapidly rising costs of premiums. The White House simply wants to avoid the political fallout of the skyrocketing costs of health care under the law during the 2014 midterm elections.

But even if the Administration really needed another year to figure out the form — it doesn’t — the law does not allow for the delay.

More importantly, employers are still required to comply with the mandate to provide minimum coverage under the law, and to submit the reporting information to the Secretary. A blog post does not change that.

Perhaps that is why Mazur still “strongly encourage[s]” employers to “voluntarily implement this information reporting in 2014, in preparation for the full application of the provisions in 2015” and to “maintain or expand health coverage” in 2014.

But news media reports that the employer mandate somehow does not apply in 2014 is not worth the bits and bytes it’s printed on. The Administration is breaking the law by not implementing the reporting requirements, and is further implicitly encouraging employers to violate the mandate — when in fact it is still in effect.

No president, not even this one, has the constitutional prerogative to just arbitrarily change the law of this country.  That is what separates a representative democracy from a third world dictatorship where the elected Congress is largely just meaningless apparatchiks. It cuts to the heart of his disrespect for the constraints on his presidential powers.

Therefore, it is time for Congress to take action to protect the Constitution. The entire law should be repealed.

But failing that, in the very least, enforcement of the law should be delayed not just for one, but for three years to ensure that bureaucratic bungling doesn’t collapse the health care system, and worse compel employers into non-compliance with the law as it is written.

As it stands, if Congress does not act, this “waiver” by the Administration could still lead to significant penalties being levied on employers in the form of back taxes owed because they assumed the employer mandate had actually been waived when it was not.

Nathan Mehrens is the President of Americans for Limited Government.

  • pduffy

    Obama’s birth certificate is a fake. Everything he signed “into law” is invalid. I will buy insurance the day Obama proves he is a natural born citizen and passes E-verify, which currently he fails because he is operating with a stolen social security number. Personally I am taking the Rosa Parks route of civil disobedience. Congress won’t repeal it, but we can break this thing like the civil rights movement broke the racist separation laws. They can’t put us all in jail. There is no other way to put this genie back into the bottle.

  • 1 4 liberty

    Congress needs to act now. They need to take this issue seriously and not allow this administration to change laws at their whim. This country was founded with a principal of separation of powers just for issues like this. If Congress does not act in this case, then we are doomed in a dictatorship against our will. Congress needs to know that WE THE PEOPLE ARE WATCHING their actions. Congress needs to grow some B*old and use this to stop this dictator from assuming the powers that belong to THE PEOPLE not the administration. Congress also needs to defund this whole law. They have the power of the purse but not enough B*lls to use it.we are watching and we will vote accordingly . f this

  • Dirty Daug

    The article is right on as the Companies can be fined later on for not reporting. This mandate by Obama is just a political way of getting more votes for whatever Democrats are running in 2014. The whole Obama care should be threw out as it will have terrible affects on The USA. This Obama care was wrote up with it’s thousands of pages long before Obama ran for President by the ones sponsoring Obama. It really has nothing to do with healthcare but what it will do is wreck America.


    The law was made to fail. It had one purpose in mind and it was not getting everyone affordable health care. It was drawn up and sped through congress and used as a tool to trick the uninformed liberal voters and anyone else they thought might buy their lies into thinking this was another free handout they could expect from good old uncle sam. The y bought million of votes with frivolous, not well thought out piece of toilet paper bill and the sad part is that it worked. Not once, but twice getting this lunatic we have in office voted back in gain.

  • Combat Veteran Seabee

    Well stated as a ploy to save the democrat’s sixes in the mid terms, no other reason is applicable, and this is not legal, nor is the law as defined by SCOTUS. It was declared a tax, and ALL taxes must be originated in the House of Representatives, NOT the Senate!!!! There is the legal loopphole to squash this monstrosity but nobody seems to see the forest through the trees here!

  • Combat Veteran Seabee

    oblowhole needs to be thrown out right along side of it. Egypt is on to something, why can’t Americans be as brave!

  • Don39

    Obama has always been ‘extralegal’ more appropriately illegal, a fraud and a thug outlaw!

  • Don39

    The only way to invalidate the fraud is as Egypt is doing! Obey our Constitutional duty to act as necessary to protect our rights and the Constitutional Republic. Do not tolerate the insubordination of our elected officials , do what is necessary to recall them, peacefully or otherwise!

  • pduffy

    History is not on your side on this argument. When the ‘Social Security’ act was passed, congress used the same arguments and made the program ‘voluntary’, but later SCOTUS ruled that the payroll deductions were “‘a tax”, and that any individual claiming a right to his withheld funds could be denied (1964 ruling). Don’t count on the black robes to uphold the law, as they have proven over and over again they will do the will of those that appointed them like Sotomayer and Kagan did for Obama-care, as they were appointed for that very purpose. It is a political group of hacks.

  • pduffy

    When you make the decision to stand for your freedoms, you must “count the cost”. They may try to put me in prison, but so be it. I am sure that Rosa Parks knew she would be punished, but she had the courage to stand up for what she believed in, regardless of the consequences. I am not taking up arms, but I will refuse to obey Obama’s unconstitutional power grabs.

  • FloridaJim

    Obamacare is such a debacle they can’t get all the regulations written in time and they can’t get employers to sign up. 20,000 pages of laws on Obamacare and the Constitution was written is written on a small book 3″ x 4″ in my hand!

  • swede41

    Obama has repeatedly violated our Rule of law and our constitution while preaching to other countries about the IMPORTANCE OF FOLLOWING THE RULE OF LAW AND THEIR CONSTITUTION,,oBAMA LIES WITH EVERY WORD COMING OUT OF HIS MOUTH

  • wmagg

    It is better to live a moment on your feet than a lifetime on your knees

    The cost of freedoms must only be measured against the loss of those freedoms
    and the tyranny of those who seek to destroy all freedoms “like turd boy” will always be part of every corrupt government

  • Jeff Noncent

    this is a joke I hope Americans will wake up and smell the Rat who is destroying the very core of what this nation stand for

  • GQ4U

    Join the Birther movement and have BHO this POS POTUS usurper dragged out of our White House kicking and screaming as they toss him in prison awaiting trial for treason.

  • smrstrauss

    Obama’s birth certificate is not “fake.” Only birther “experts” have CLAIMED that it is forged———and they have not shown that they are even experts, much less fair and impartial. Those are two reasons why they are not believed by Ann Coulter, Glenn Beck or the National Review (or by Mitt Romney or Paul Ryan or Gingrich or Santorum or Huckabee).

    One proof that Obama’s birth certificate is not forged is Obama’s short-form birth certificate.

    Short-form birth certificates are created by a clerk reading the information from the document in the file, and filling out the computer form that generates the printed short-form birth certificate. The officials in Hawaii have confirmed that they sent a short-form to Obama. So, unless they are lying—and they were Republican officials–the only way that Obama’s birth certificate could have been forged was that it was forged in 2007 and slipped into the file just before the clerk looked at the file. That is not very likely, is it? And it is especially unlikely since at the time Obama was not even the candidate of the Democrats. He was still in the primaries at the time, and he was only a junior senator from Illinois.

    And birther sites have not shown you these real experts.

    Dr. Neil Krawetz, an imaging software analysis author and experienced examiner of questioned images, said:“The PDF released by the White House shows no sign of digital manipulation or alterations. I see nothing that appears to be suspicious.”

    Nathan Goulding with The National Review: “We have received several e-mails today calling into question the validity of the PDF that the White House released, namely that there are embedded layers in the document. There are now several other people on the case. We looked into it and dismissed it.… I’ve confirmed that scanning an image, converting it to a PDF, optimizing that PDF, and then opening it up in Illustrator, does in fact create layers similar to what is seen in the birth certificate PDF. You can try it yourself at home.”

    John Woodman, independent computer professional, who is a member of the Tea Party (who says that he hates Obama’s policies but found no evidence of forgery) said repeatedly in his book and in various articles on his Web site that the claims that Obama’s birth certificate was forged were unfounded.

    Ivan Zatkovich, who has testified in court as a technology expert, and consultant to WorldNetDaily:“All of the modifications to the PDF document that can be identified are consistent with someone enhancing the legibility of the document.” And, by the way, when WND received Zatkovich’s article that said that he found nothing wrong with Obama’s birth certificate, WordNDaily simply did not publish it.

    Jean-Claude Tremblay, a leading software trainer and Adobe-certified expert, who has years of experience working with and teaching Adobe Illustrator, said the layers cited by doubters are evidence of the use of common, off-the-shelf scanning software — not evidence of a forgery.“I have seen a lot of illustrator documents that come from photos and contain those kind of clippings—and it looks exactly like this,” he said.

    Birthers’ claim that Obama’s birth certificate is false is well understood to be caused by their own motives—they hate Obama and would like to harm him.

    And it is irrational (to say the least) to think that Obama’s relatives had enough money (Obama’s grandfather was just a furniture salesman and his grandmother a low-level employee in a bank at the time; and his father came to Hawaii on a free flight) or crazy enough to spend LOTS of money on a long and expensive and risky (incidents of stillbirths were high at the time) overseas trip for their pregnant daughter—–when there were perfectly good hospitals in Honolulu, Hawaii. (Oh, and the government of Kenya has said that it investigated the “born in Kenya” claim, and that it did not happen.)

  • Iamacitizen2

    From what I have read about the original Ocare Bill, there was NOT a clause put in “subject to change without notice.” So, technically if Obummer makes an E.O. to change anything relating to the original bill then he is in total error for doing so. The whole bill would be thrown out but the dummies in D.C. haven’t caught this yet.

  • Iamacitizen2

    Obummer’s own lawyers “ADMITTED” in an open court case that his birth certificate was a fake. How on God’s green earth can you state otherwise? Check the facts out this happened several years ago for goodness sake.

  • smrstrauss

    Actually, they did not admit any such thing. The whole story was made up by a birther site.

    Oh, and birther sites also made up the story about “Governor Abercombie admitted that he could not find the birth certificate.” And they ALSO made up the story about “Obama’s Kenyan grandmother said that he was born in Kenya” (She actually said repeatedly that Obama was born in Hawaii, birther sites simply did not quote her). Oh, and the “video” that birther sites often point to that claims that Obama said “I was born in Kenya”—is a forgery.

    And, worst of all, birther sites have not even told their readers that there is ABSOLUTELY NO EVIDENCE that Obama’s mother even had a passport in 1961 (so how could she have made an International trip without one?)—and very very few 18-year-olds did have passports in 1961. (And birther sites have not even shown their readers the date on which Obama’s mother’s passport file was created—and that is unlikley to have been scratched off of the file, but they do not show it—because, if it was created in 1961 or 1966, as is likely, Obama’s mother could not have had a passport in 1961.

    Getting back to the first point, Obama’s lawyers never admitted any such thing. A birther site made it all up.

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