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U.S. Sen. Ted Cruz sees a "consistent pattern of lawlessness from this president and this administration"-- unilaterally altering laws and choosing which to enforce, Cruz said in Austin on Jan. 10, 2014.
One example, the Texas Republican said, came last summer, when President Barack Obama delayed by a year the Obamacare law’s requirement that companies with 50 or more employees provide coverage to their workers.
"The president’s a big fan of saying, ‘It’s the law of the land. We need to follow the law of the land.’ Oh, really? Let’s see, that law of the land says on Jan. 1, 2014, the employer mandate shall kick in for big business," Cruz said at a Texas Public Policy Foundation conference.
"And yet the president just announced unilaterally, ‘No, we’re not enforcing this. I’m granting an exemption to all of big business.’ And by the way, this was done -- was this done through a big formal announcement, through an address to the American people: ‘There’s a problem in this law; we’re going to have to change it’?
"No. It was done through a blog post by a mid-level bureaucrat at the Department of Treasury on July 3, right before the Fourth of July break."
We’re not getting into whether laws were broken; not our purview. But we wondered if Cruz accurately captured how the change was revealed.
Cruz spokesman Sean Rushton told us by email that Cruz was referring to a July 2, 2013, blog entry on Treasury.gov attributed to Mark Mazur, assistant secretary for tax policy. The post said, "The administration is announcing that it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin."
News coverage that day said the Treasury and White House websites broke the news. The New York Times reported:
In a significant setback for President Barack Obama's signature domestic initiative, the administration on Tuesday abruptly announced a one-year delay, until 2015, in his health care law's mandate that larger employers provide coverage for their workers or pay penalties. The decision postpones the effective date beyond next year's midterm elections.
Employer groups welcomed the news of the concession, which followed complaints from businesses and was posted late in the day on the White House and Treasury websites while the president was flying home from Africa.
The Washington Post’s Wonkblog said:
The Obama administration will not penalize businesses that do not provide health insurance in 2014, the Treasury Department announced Tuesday. … "We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively," Mark Mazur, Assistant Secretary for Tax Policy, wrote in a late Tuesday blog post.
In a July 3, 2013, news story, Bloomberg News described the White House website announcement:
Valerie Jarrett, a senior Obama adviser, said in a blog post announcing the move that the administration decided on the delay so officials could simplify reporting requirements and give employers a chance to adjust their health-care coverage.
Some months later, it looks to us like the Treasury announced the change shortly before the White House did. Jarrett’s post is time-stamped 6 p.m. Eastern; the Treasury blog entry does not have a time stamp. But the earliest news accounts we saw solely cited the Treasury post: the Washington Post news blog entry, stamped 5:51 p.m., a Business Insider news story stamped 5:41 p.m., and a Huffington Post item stamped 5:50 p.m. Eastern.
With the announcements, the government put in motion one-year delays for businesses to report certain information to the IRS and related penalties. The Obamacare law, approved in 2010, essentially requires affected employers and other health coverage providers to report whether their insurance plans meet the law’s minimum coverage standards and whether employees are enrolled in them.
There were more notification steps: A July 9, 2013, IRS notice formalized the change, and Treasury and the IRS published proposed versions of the rules for comment Sept. 9, 2013, in the Federal Register. When we called in January 2014, IRS spokesman Eric Smith told us by phone that the final rules had not yet been issued.
Debate has swirled over whether the administration had the authority to unilaterally make this change. Rushton emailed us a link to a July 8, 2013, blog post by the libertarian Cato Institute saying the Affordable Care Act gives Treasury the authority to collect penalties, not to waive them or the reporting requirements. In contrast, a Treasury official told a House subcommittee on July 17, 2013, that the department generally may delay effective dates in some circumstances -- such as easing the transition to new requirements -- because of a law stating the IRS can "prescribe all needful rules and regulations" to enforce relevant laws.
So: The news was announced on two government blogs.
And was the originator a mid-level bureaucrat?
John Palguta, vice president for policy at the Partnership for Public Service, a nonpartisan group that studies the federal workforce, told us by email, "The assistant secretary for tax policy is far from a mid-level Department of Treasury employee.
"Of the approximately 2.1 million civilian employees in the executive branch of government (not counting the Postal Service), Mr. Mazur is one of only 1,217 Senate-confirmed, political employees in government paid at executive-level IV," which in 2013 was $155,500 a year.
On the other hand, a University of North Carolina constitutional law professor who wrote a book on federal appointments told us by email, "He could be described as ‘mid-level’ but, because he is Senate-confirmed, not a bureaucrat.
"Under the Constitution, officials requiring Senate confirmation are thought of as officers of the U.S." – a term, Michael Gerhardt said, that "has been defined by the Supreme Court as someone who wields some substantial policymaking authority." A bureaucrat "sounds as if it is someone who does not have much authority or discretion," he said.
Gerhardt said "mid-level" typically means "ranking somewhere within the middle of the hierarchy of the department. It is not unusual for Senate-confirmable officials to be in such posts."
Cruz said that Obama unilaterally announced he was delaying the employer mandate "through a blog post by a mid-level bureaucrat at the Department of Treasury."
The announcement was also made on a White House blog, and "mid-level bureaucrat" isn’t necessarily accurate. We rate his statement as Mostly True.
MOSTLY TRUE – The statement is accurate but needs clarification or additional information.
Click here for more on the six PolitiFact ratings and how we select facts to check.
Correction, 4:10 p.m. Jan. 21, 2014: We revised this story, which originally overstated the salary of executive-level IV government employees. This correction did not affect our rating of the claim.
U.S. Sen. Ted Cruz, speech at Texas Public Policy Foundation forum, Jan. 10, 2014
Email interview, excerpted, with Sean Rushton, Cruz spokesman, Jan. 10-16, 2014
U.S. Department of Treasury, Treasury Notes blog post, "Continuing to Implement the ACA in a Careful, Thoughtful Manner," July 2, 2013
The New York Times news story, "Obama administration delays health law's employer mandate until 2015," July 2, 2013
Washington Post Wonkblog post, "White House delays employer mandate requirement until 2015," July 2, 2013
Bloomberg News news story, "Health-Law Employer Mandate Delayed by U.S. Until 2015," July 3, 2013
The White House Blog post, "We’re Listening to Businesses about the Health Care Law," July 2, 2013
Business Insider news story, HUGE: White House Delaying Key Obamacare Provision For A Year," July 2, 2013
Huffington Post news story, "Obamacare Employer Mandate Delayed For One Year," July 2, 2013
IRS Notice 2013-45, July 9, 2013
Treasury and IRS notice of proposed rule-making and public hearing, Federal Register, Sept. 9, 2013
Cato Institute blog post, "Yes, Delaying Obamacare’s Employer Mandate Is Illegal," July 8, 2013
Written testimony of J. Mark Iwry, Senior Advisor to the Secretary and Deputy Assistant Secretary for Retirement and Health Policy, U.S. Department of the Treasury, to House Committee on Ways and Means Subcommittee on Health, July 17, 2013
Email interview, excerpted, with John Palguta, vice president for policy, Partnership for Public Service, Jan. 13, 2014
Email interview, excerpted, with Michael Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law and director of Center for Law and Government, University of North Carolina School of Law, Jan. 13, 2014
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