At President Trump’s direction, the Internal Revenue Service has launched an all-out assault on Obamacare that could cripple the health-care law and lead to lost coverage for millions. Or the IRS has done nothing, really. It depends how partisan you are and whether your memory extends further back than 28 days. It also depends on how you view the problem of the non-executing executive.
In the short history of President Obama’s troubled health-care law, the IRS always processed tax returns regardless of whether the taxpayer indicated that he had either purchased adequate health coverage or would pay the fine. By law the individual mandate went into effect in 2014, but Obama’s IRS determined it would be better to ease taxpayers into the mandate by failing to scrupulously enforce it.
Taxpayers were on the honor system to either buy coverage or, if they did not, disclose their failure to purchase on their tax returns and pay the fine. Taxpayers who failed to complete that portion of their tax returns, so-called silent returns, simply got away with flouting the law.
Then Trump Was Elected
This changed after Trump won the election in November. In its 2016 year-end report, the IRS noted that it would start rejecting silent tax and thereby require each filer to state whether they had complied with the individual mandate. That IRS decision was a departure from the policies of the Obama years, and there was no statutory support for it. The change was simply the result of bureaucrats deciding that it was time to tighten enforcement of the mandate.
This week the IRS reversed itself. It will process silent returns this year, just like it did for the prior two. To its credit, the IRS can at least point to a source of authority, however tenuous, for its decision to revert to honor system enforcement. Within hours of Trump taking his oath of office he issued an executive order which, among other things, directed the IRS to “waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the [ACA] that would impose a fiscal burden” on individuals, families, and a host of businesses.
What’s sauce for the goose is sauce for the gander.
What you think about this probably depends on what you think about Trump. According to some members of the media, this “stealth attack” by “Trump’s IRS” is a “major blow” to the health-care law and “the first nail into Obamacare’s coffin” which could “undermine enrollment.” For everybody else, though, this is simply a continuation of the policies of non-enforcement that Obama employed throughout his time in office.
When Presidents Won’t Obey Their Own Laws
Obama’s years in office highlighted the problem of the non-executing executive. Obama believed there was a power inherent in the presidency to decline to enforce laws duly passed by Congress and signed into law. The contours of this Obama Rule were never fully explored, but he applied it on multiple occasions.
For example, despite signing Obamacare into law, Obama ordered the IRS to decline to enforce the employer, individual, and compliant coverage mandates according to the statutory implementation dates. On immigration, he infamously celebrated non-enforcement programs for aliens who were brought to the United States as children (DACA) and for unlawfully present alien parents of U.S. citizens (DAPA), despite having previously claimed that he lacked the authority to create such amnesties on his own authority.
What could be done about a president and an executive branch that declined to enforce laws duly passed by Congress and signed by the president into law? The answer in the Obama years was that nothing much could be done. Neither the public nor the media nor the courts cared that Obama chose to restrain enforcement of laws that he thought were burdensome. Largely, the public and the media agreed with him. When faced with litigation, the courts dodged the question. Even in the case of DAPA, which was halted by a district court, the order declined to impose an actual duty of enforcement on the executive branch.
At the time, I suggested that the path to renewed public, media, and judicial interest in enforcement of the laws would be for a Republican president to start applying the Obama Rule to laws conservatives do not like. That would be sure to get the Left’s attention:
There will be no faster route to squealing outrage from the Left than applying the Obama Rule to one of their beloved federal programs. I particularly favor selective enforcement of the Clean Air Act to relieve the regulatory burden on businesses as the most likely candidate to induce Democrats to immediately repudiate the Obama Rule, but I think the case can be made for broad tax reforms as an alternative, particularly if there is resistance to such reforms in Congress. Just as Obama instructed the Treasury Department not to enforce the Obamacare reporting requirement for employers, the next Republican president could instruct Treasury not to enforce, say, income taxes outside certain reformed brackets.
If the response to the IRS’ decision to continue its honor system enforcement of the individual mandate is any guide, it will not be long before the Left discovers that laws duly enacted by Congress are owed more deference than the casual disregard Obama offered them. In the meantime, Trump should work with Congress where he can. Where Congress does not want to work with him, that’s what the Obama Rule is for. Thanks, Obama!