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Is the Employer Mandate Delay Legal?

Can a president just pick and choose which laws to enforce? That’s a question some Republicans are asking after the Obama administration announced late Tuesday that it would delay enforcement of the employer health care mandate set to take effect in 2014.

Rep. Phil Roe, R-Tenn., chairman of the Education and the Workforce Subcommittee on Health, Employment, Labor and Pensions, asked the Congressional Research Service on Wednesday for information regarding President Barack Obama’s ability to hold up the health care employer mandate.

“This action raises a lot of questions about whether the Obama administration can simply ignore the law when it’s convenient for them,” Roe said in a press release Wednesday. “I have asked Congress’s research arm to investigate because I don’t think any president has the authority to pick and choose what parts of law to follow.”

On Tuesday, just hours after the administration announced in a blog post that it would delay the employer mandate until 2015, Oversight and Government Reform Chairman Darrell Issa issued a press release saying it was “unclear” whether Obama has the authority to do this without Congress.

“This is another in a string of extra legal actions taken by his administration to mask the horrible impact his law will have on the economy and health care in the United States,” Issa said.

On Wednesday, Issa’s office sent CQ Roll Call a document outlining its legal concerns. The law very clearly states that the employer mandate, which requires employers with 50 or more workers to provide essential coverage or pay penalties, “shall” go into effect after December 31, 2013.

However, the relevant section of the Patient Protection and Affordable Care Act says the health care law shall be “in accordance with regulations promulgated by the secretary.”

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