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President Obama has been claiming that a lot of his actions lately on Obamacare are allowed because the ACA grants him broad "transitional authority" to do certain actions necessary to make the transition to the new system as smooth as possible.

So does the ACA specifically grant him transitional authority? (if so what specific authority does it give him?)

  • Yes I believe the executive branch is granted transitional authority, but they are not allowed to modify laws that congress has explicitly written legislation. My Q&A is out of date, last count I heard Obama made 17 "transitions" to the ACA. – user1873 Nov 27 '13 at 16:26
  • @user1873 Do you know the details of exactly what transitional authority the ACA granted the executive branch? – Keshav Srinivasan Nov 28 '13 at 20:58
  • @user1873 Contrary to that thread, the President hasn't modified any laws at all, but that's irrelevant to his thread, which is about what transitional authority the ACA grants. – Keshav Srinivasan Nov 28 '13 at 21:06
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    His administration has modified the ACA as written by Congress. If that thread wasn't clear, this one indicates where he thinks he has the authority to take the actions he has. The ACA does not grant any transitional authority to the President. What specifically do you think "transitional authority" means? That might help clarify the question. (Link to definition or Wiki) – user1873 Nov 28 '13 at 22:00
  • You said "Yes I believe the executive branch is granted transitional authority". Can you be more specific? Transitional authority would of course mean authority granted in order to smooth the transition period. – Keshav Srinivasan Nov 29 '13 at 4:07
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No, nothing in the Patient Protection and Affordable Care Act grants the President transitional authority.

The argument that the administration is putting forth is that, because the ACA mandates incur an IRS penalty, they have the authority to delay the individual and business mandates (as well as other modifications to the ACA). They specifically cite 26 U.S.C. 7805(a):

(a) Authorization

Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

There is nothing specifically in the PPaACA that grants the President or the Executive Branch transitional authority.

  • This section of the USC also is what gives the government the right to apply laws to an individual "ex post facto" (constitution be damned), 7805(b)(3) " (3)Prevention of abuse-The Secretary may provide that any regulation may take effect or apply retroactively to prevent abuse." Art1Sect9, " No Bill of Attainder or ex post facto Law shall be passed [unless the Secretary thinks it is abusive]." – user1873 Feb 5 '14 at 6:18
  • No, it's not unconstitutional. Taxes are imposed retroactively all the time. Courts have ruled they don't constitute ex post facto laws. – Keshav Srinivasan Feb 5 '14 at 16:28
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    @KeshavSrinivansan, I am well aware of that (if you read the link, so would you). Just because the SCOTUS says it is constitutional, doesn't mean that it doesn't directly violate the constitution. For example, if SCOTUS said that the police could stop you for questioning without probable cause, or said that soldiers could be housed in you apartment without permission, or that the 1st Amendment doesn't apply if you are a member of the Tea Party, or that they can execute US citizens without trial, etc. Would you still accept those laws as constitutional, becaue SCOTUS said they were? – user1873 Feb 5 '14 at 16:53
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    I'm not claiming that it's constitution just because the courts said that it was. But the courts have presented convincing arguments. Blackstone, for instance, says that taxes imposed on wealth accumulated when the tax wasn't in effect weren't considered ex post facto laws in England, which is where we get our prohibition from. The reasoning is that you're not being asked to pay a tax because you broke a current law in the past, you're being asked to pay a tax in order to follow a current law now. So the fact that you accrued the income beforehand doesn't make it ex post facto. – Keshav Srinivasan Feb 5 '14 at 17:41
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    @KeshavSrinivasan, you have a very generous definition of "current law." When people make decisions based upon "current law for a tax year," and then the IRS changes the laws for that tax year to apply to those financial decisions that occured in the past (I have heard of a 10 year retroactive application), I disagree with the court that that is not applying laws after the fact. (I would be opposed to a wealth tax Do you think savings should be taxed?) – user1873 Feb 5 '14 at 18:33
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The ACA does not grant him unilateral authority to alter the law, but it does give him authority to implement it as he sees fit. This does not mean you can change the law itself, like exempting certain individuals that were not exempted in the ACA as passed. This is called an executive overreach.

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There is always "transitional authority" by virtue of the writing of regulations. The statute generally allows the president (via the secretary of HHS) to draft regulations which present the administration's interpretation of the statute that was enacted. Often, that authority is fairly broad.

The regulations under the ACA have been overly broad and the courts will have to sort this out if a future president doesn't fix the problem. The statute is generally the authoritative source, however, it is possible for courts to rely on the legislative history to discern the underlying intent of the statute.

Of greater concern is the administration's blatant disregard of the statue, for example, the recent decision to divert funds from other sources to reimburse insurance companies for their losses. This is an outright violation of the law as the law was specific on the subject of how the "risk corridor" provision was to be determined. The administration can't just change that (particularly, for political purposes, as has been done).

Unfortunately, on many of these items, they will be over and done with long before the courts act on them; so even though the president is breaking the law, nothing will be done about it.

The bigger problem is that the law is totally unconstitutional, because it raises billions in revenue for the general fund and the legislation didn't originate in the House, which the Constitution requires for good reason. The expectation is that the Court will not move against Congress on this, but that presumption may or may not be right. We could well see the ENTIRE law thrown out for this reason alone.

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