Employer Mandate Under the Affordable Care Act

Floor Speech

Mr. DeSANTIS. I thank the gentleman from South Carolina.

When we left in December to go back to our districts for the Christmas weekend, I got home and thought, Okay, the President is going to do something with ObamaCare as we get close to Christmas. You just know anytime you come up on a holiday, some news gets put out. July 3, leading into the 4th of July, was the employer mandate delay. The grandfather stunt was pulled leading into Thanksgiving.

And sure enough, December 19, the Obama administration grants a ``hardship exemption'' from the individual mandate tax penalty to those who have seen their plans canceled due to ObamaCare.

I don't think any of those plans should have been canceled. I offered a bill here, and the House passed something similar, to essentially grandfather in those plans. The Federal Government shouldn't be forcing people out of plans they like. Certainly, things needed to be done there.

But understand how unfair this is. If you had insurance and your policy is canceled, and then the ObamaCare replacements are not affordable for you, they are saying, Okay, you are fine. No penalty for you. But if you are somebody who couldn't have afforded insurance the prior year, and now you are told you are forced to go on these ObamaCare exchanges, you still have to pay the tax, even though you may have been worse off than some of those other folks.

Or if you are somebody that had employer coverage last year, and now maybe going out on your own and you need to buy individual insurance, if you end up in the exchanges and you don't find those affordable to you, you don't get the same relief.

When you are talking about arbitrary delays like this, it is inherently unfair.

Now, give the administration some credit. Unlike some of the other delays, there is actually a provision in ObamaCare that says people can qualify for a hardship exemption from the individual mandate. The problem is that in this instance it is ObamaCare itself that constitutes the hardship.

So because ObamaCare is implemented, these people are suffering a hardship. Therefore they are exempt from the statute. To me, I think that is an abuse of what the statute is supposed to do. Certainly, it begs the question, Could you simply delay or grant a suspension of all of these provisions of ObamaCare?

It is interesting because I was reading in the Weekly Standard publication, one of the reporters was asking members of the Senate what are their limits, what is the principled justification for his conduct.

And so the reporter asked one Senator:

How do you determine if the President couldn't do something that it does exceed his authority? Are there any parts of the law that the President does not have the authority to delay or suspend?

The Senator's response--a Democratic Senator:

I don't know. I'm not the scholar on that.

Well, the reporter went to another Democratic Senator and said:

Are there are any delays the President wouldn't have the authority to make? Could the President potentially suspend the entire law if he wanted to?

His answer:

I can't answer a hypothetical.

The reporter asked again:

So you can't say if there are any parts of the law he couldn't delay unilaterally?

The Senator said:

I can't answer a hypothetical.

Finally, another Senator told the reporter he doesn't know of any legal impediment preventing the executive branch from delaying the employer or individual mandates.

When asked:

Couldn't a future President just simply come in and suspend the entire law?

That Senator said:

I don't want to speculate what a future President might do.

And so I think those answers, when Senators and the President's own party cannot offer any principled justification for the President's conduct that would exclude the potential of a President simply delaying all provisions of the law, you know that you are not in the realm of faithful execution of the law.

I think it is a challenge. We have talked about it in this Chamber in hours like this. We have had hearings in the Judiciary Committee with experts--even liberal constitutional law experts--saying that this conduct goes beyond what the Founding Fathers intended and what the Constitution envisioned.

I would like to see somebody offer a principled justification for the President picking and choosing which parts of the law should be enforced and should not be enforced, should be delayed, should be suspended, or should be ignored.

It is interesting, because when you go back and look at the Founding Fathers when they created the Constitution, when they created the Congress, when they created the executive, at the convention James Wilson from Pennsylvania was the one who moved to create a President consisting of a single person. And that caused silence in the convention hall because they had just rebelled against Britain. And although you needed some type of executive power, there were some who were a little bit taken aback that you would even have a single President, even in a constitutional system. Some of the people said at the time that you can't really have a strong President and have a republic.

So this was a huge issue for the Founding Fathers. Clearly, it would not have been acceptable to stand up at the Constitutional Convention and say, Yes, the President is going to have the authority and duty to enforce the laws; but if there are laws he doesn't like, he will be able to delay provisions or ignore provisions as he sees fit, as long as it is consistent with his overall purpose or political agenda. That would not have been acceptable to anybody at the time.

Can you imagine if when John Adams succeeded George Washington, he just started delaying provisions related to the bank of the United States or the Jay Treaty? Imagine when Jefferson came in. He ran against the Alien and Sedition Act. Some of those were just allowed to expire, but they went in and repealed a core portion of the Alien and Sedition Act. They didn't just ignore it. The provisions that expired, expired; and then they repealed the provisions that were still in effect.

That is the way it is supposed to be done. They would never have allowed John Adams or Jefferson to come in and just willy-nilly enforce what they wanted to and not enforce what they didn't want to.

And so part of the frustration of this is Congress is supposed to stand up for its authority. I think the House people here realize that what the President is doing is not proper constitutional government, but the U.S. Senate is just totally out to lunch on this. They are not interested in safeguarding their institutional prerogatives, because they are putting their political interests ahead of the legislative body's authority. That really runs contrary to how the Founders envisioned the separation of powers and checks and balances working.

In Federalist 51 Madison said:

Ambition must be made to counteract ambition.

What he meant by that is that, yes, you have separate powers. You have an executive, a legislative, and a judicial power. But just because you separate them doesn't mean that individual liberties can be secure.

So you have got to give each branch the ability to check the other branches. And they were sure they knew people would have different partisan allegiances and all that, but they were pretty sure that each branch would have the wherewithal and would want to defend its own prerogatives.

And so in this instance, I think what you don't have is a Senate that is willing to join with the House, use the power of the purse, use the appointment power, advise and consent, all the powers that we have, use those until the President starts conforming with the law.

But we are not there yet. And so this idea of trying to bring this in front of courts, we shouldn't have to do that. We should be able to defend our own turf. But it is frustrating because we don't have a lot of other options at this point.

So I think that my colleague from South Carolina, you know, I give him credit for thinking of what can we actually do that could potentially be successful. And so I am hoping that this move will be successful.

But I think, going forward--and this has been a problem before this President. He is not the only one who has pulled stunts like this, although I think he has gone beyond what any previous President has done.

Ultimately, people in this body and in the other Chamber have got to get serious about defending our constitutional responsibility. That means holding Presidents accountable who are not in accordance with article II, section 3, the ``Take Care'' clause. But it also means not delegating so much legislative authority to these bureaucracies when they end up essentially legislating, and those rules are imposed on the public without Congress saying anything at all about it.

So, ultimately, the courts cannot save us if we aren't willing to save ourselves and protect the authority that the Constitution grants us and that we are supposed to exercise on behalf of the people that we represent.

We are, especially in this House, we are the people's House. The President gets elected, too, but we are the closest to the people, and I think we have got to do a better job of this going forward.

So I would just tell my friend from South Carolina, Thank you for doing this. I know you have signed on. I have a resolution just to say that the House doesn't approve of this conduct, because I fear if we don't do anything, then we are basically setting a precedent where this is going to be unquestioned going forward.

So I think as much as we can do, even if we are not successful, at least we are showing people that we think this is a contested practice, and we are not willing to allow this to become something that is accepted for future Presidents, Republican or Democrat.

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