Obamacare delayed- To help elect democrats

[werepossum]

I'd direct you to post #93 in this thread.

Searching is, like, hard and stuff. Let's make cookies!

Really?

Mr. McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, and a professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution disagrees with you.



http://online.wsj.com/article/SB10001424127887323823004578591503509555268.html

Fern

"Your Honor, my name is Barack Obama and I have discovered that this law is clearly unconstitutional until 1 January 2015."

This program is SNAFU'd unto complete FUBARity. Honestly, aren't we all better off putting it off another year until it can be implemented with only the usual level of incompetence?

And given that, aren't we all better off putting it off another year administratively rather than sending it back to Congress and having G-d only knows what pork attached to it? A year's delay might end up costing us hundreds of billions.

 

[Jhhnn]

I'd direct you to post #93 in this thread.

Which doesn't overrule what the IRS offered wrt delayed implementation & existing statutes, does it?

 

[palehorse]

Which doesn't overrule what the IRS offered wrt delayed implementation & existing statutes, does it?

Perhaps so, or not... but, it certainly makes you look like the idiot you are for claiming that no such post existed.

There's always that...

 

[sactoking]

Which doesn't overrule what the IRS offered wrt delayed implementation & existing statutes, does it?

Plain-language reading? It does. Treasury cited "transitional relief" authority under IRC 7805(a). Unfortunately, it doesn't look like such authority exists. 26 U.S.C. § 7805(a) reads, and I quote:

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.

§7805(a) grants the Secretary of the Treasury general authority to adopt administrative rules and regulations "for the enforcement of [the] title". It doesn't grant "transitional relief" authority. Administrative law holds that an administrative rule or regulation can interpret a legal statute but it cannot contradict it. Holding that § 7805(a) grants the Secretary the authority to postpone enactment of ACA §§ 1513-1514 would appear to allow an administrative rule to directly contradict a plain-language reading of the statute it is interpreting.

This would not be the first time that Treasury and/or CMS has attempted to issue an administrative rule directly in conflict with the underlying statute in regards to the ACA...

 

[Hayabusa Rider]

You didn't know that? Really? Did you sleep through the Bush administration (and Clinton, and Bush 41, and Reagan, and ...)? Government always picks and chooses which laws it enforces. Bush was selective on environmental and "anti-business" laws. Many states are selective about drugs, especially weed. It's common practice. When one agrees with their decision, it's using good judgment to ignore a bad law; when one disagrees, it's OUTRAGEOUS!

I do have to laugh at the naked hypocrisy of those who've spent the last few years demonizing Obamacare suddenly acting even more outraged that part will be delayed. It's what you should want, but it's the Obama administration's decision so you have to oppose it (or at least that's what the angry man on [ Fox | the radio ] said). Pavlov's clowns, howling on cue.

I disagree. There is a fundamental difference between enforcement of what one is against and what one asked for. Presidents always do the former. I submit it would be difficult to find something so hard fought for being given such treatment. Frankly when was that last legislative equivalent? I can't come up with one in quite some time.

 

[Jhhnn]

No, but it certainly makes you look like the idiot you are for claiming that no such post existed.

There's always that...

I did not make that claim- I said I couldn't find it, which was the truth. mea culpa. Thanks to sactoking for getting me there.

Strawman often?

 

[Jhhnn]

Plain-language reading? It does. Treasury cited "transitional relief" authority under IRC 7805(a). Unfortunately, it doesn't look like such authority exists. 26 U.S.C. § 7805(a) reads, and I quote:



§7805(a) grants the Secretary of the Treasury general authority to adopt administrative rules and regulations "for the enforcement of [the] title". It doesn't grant "transitional relief" authority. Administrative law holds that an administrative rule or regulation can interpret a legal statute but it cannot contradict it. Holding that § 7805(a) grants the Secretary the authority to postpone enactment of ACA §§ 1513-1514 would appear to allow an administrative rule to directly contradict a plain-language reading of the statute it is interpreting.

This would not be the first time that Treasury and/or CMS has attempted to issue an administrative rule directly in conflict with the underlying statute in regards to the ACA...

I hadn't expected such desperate attempts at hair splitting from you.

 

[Hayabusa Rider]

I hadn't expected such desperate attempts at hair splitting from you.

Or- "Shit I've been handed my ass again".

BTW Florida is calling. They're looking for the governor who supported the shutdown and no one but you has seen him.

 

[Jhhnn]

Or- "Shit I've been handed my ass again".

BTW Florida is calling. They're looking for the governor who supported the shutdown and no one but you has seen him.

Heh. You remid me of the way Nixon declared victory in Vietnam, as we were leaving.

Sactoking isn't a lawyer, I suspect, and neither am I, so it seems best to leave the interpretation of statutes to them, don't you think?

The IRS has a history of delaying implementation of various measures when pressured by reason-

http://www.cooley.com/showalert.aspx?Show=57460

http://www.mintz.com/newsletter/2011/advisories/0864-0111-nat-elb/web.htm

I'm sure there are more, as well.

So, uhh, you guys are demanding implementation on schedule, or what?

 

[palehorse]

The IRS has a history of delaying implementation of various measures when pressured by reason-

You spelled "politicians" wrong...

So, uhh, you guys are demanding implementation on schedule, or what?

I actually wouldn't mind seeing it enforced sooner, rather than later. Doing so would undoubtedly lead to a much faster and more catastrophic ACA implosion, which would also hopefully result in its cancellation and our ability to remove its supporters from office that much sooner.

One can dream, right?

 

[ivwshane]

You spelled "politicians" wrong...


I actually wouldn't mind seeing it enforced sooner, rather than later. Doing so would undoubtedly lead to a much faster and more catastrophic ACA implosion, which would also hopefully result in its cancellation and our ability to remove its supporters from office that much sooner.

One can dream, right?

Another righty hoping for America to fail? Color me surprised! /s

 

[sactoking]

I hadn't expected such desperate attempts at hair splitting from you.

I'm not splitting hairs, that would be using an argument like "The comma is placed here which is different than if it were placed there."

Nor am I attacking the decision to delay the mandate.

You're also correct in that I'm not an attorney. I am, however, a legislative liaison whose primary job duty is interpretation and drafting of statutory language. I know a fair deal about administrative rulemaking.

For example, in my jurisdiction we have a general grant of rulemaking authority under Nevada Revised Statute 233B.040, which reads:

NRS 233B.040  Regulations: Adoption; enforcement; contents; adoption of material by reference.

1.  To the extent authorized by the statutes applicable to it, each agency may adopt reasonable regulations to aid it in carrying out the functions assigned to it by law and shall adopt such regulations as are necessary to the proper execution of those functions. If adopted and filed in accordance with the provisions of this chapter, the following regulations have the force of law and must be enforced by all peace officers:

(a) The Nevada Administrative Code; and

(b) Temporary and emergency regulations.

Ê In every instance, the power to adopt regulations to carry out a particular function is limited by the terms of the grant of authority pursuant to which the function was assigned.

2.  Every regulation adopted by an agency must include:

(a) A citation of the authority pursuant to which it, or any part of it, was adopted; and

(b) The address of the agency and, to the extent not elsewhere provided in the regulation, a brief explanation of the procedures for obtaining clarification of the regulation or relief from the strict application of any of its terms, if the agency is authorized by a specific statute to grant such relief, or otherwise dealing with the agency in connection with the regulation.

3.  An agency may adopt by reference in a regulation material published by another authority in book or pamphlet form if:

(a) It files one copy of the publication with the Secretary of State and one copy with the State Library and Archives Administrator, and makes at least one copy available for public inspection with its regulations; and

(b) The reference discloses the source and price for purchase of the publication.

Ê An agency shall not attempt to incorporate any other material in a regulation by reference.

We also have a more specific grant of rulemaking authority in NRS 679B.130, which reads:

1.  The Commissioner may adopt reasonable regulations:

(a) For the administration of any provision of this Code, NRS 287.04335 or chapters 616A to 617, inclusive, of NRS; or

(b) As required to ensure compliance by the Commissioner with any federal law or regulation relating to insurance.

2.  A person who willfully violates any regulation of the Commissioner is subject to such suspension or revocation of a certificate of authority or license, or administrative fine in lieu of such suspension or revocation, as may be applicable under this Code or chapter 616A, 616B, 616C, 616D or 617 of NRS for violation of the provision to which the regulation relates. No penalty applies to any act done or omitted in good faith in conformity with any such regulation, notwithstanding that the regulation may, after the act or omission, be amended, rescinded or determined by a judicial or other authority to be invalid for any reason.

Now, you'll notice that I've highlighted parts of both Nevada laws I quoted. That's because those sections are eerily similar to the language in 26 U.S.C. § 7805(a). If I attempted to claim that NRS 233B.040 or 679B.130 could be interpreted to mean that we could willfully ignore the effective date of a bill passed by the Legislature and signed and enrolled by the Governor, some combination of the following would occur:
1) I'd get my ass handed to me by the Legislative and Executive auditors for failure to enforce a law;
2) I'd lose my job; and/or
3) I'd have an injunction slapped on me so fast my head would spin.

 

[Hayabusa Rider]

Heh. You remid me of the way Nixon declared victory in Vietnam, as we were leaving.

Sactoking isn't a lawyer, I suspect, and neither am I, so it seems best to leave the interpretation of statutes to them, don't you think?

The IRS has a history of delaying implementation of various measures when pressured by reason-

http://www.cooley.com/showalert.aspx?Show=57460

http://www.mintz.com/newsletter/2011/advisories/0864-0111-nat-elb/web.htm

I'm sure there are more, as well.

So, uhh, you guys are demanding implementation on schedule, or what?

I'll hand it to you. No matter how many times you get put down your cranium remains impenetrable. You wouldn't know victory if it bit you in the face.

Have you ever considered that those who wrote the legislation which likely has an enormous number of unintended consequences had ought to have gotten their ducks in a row?

Na, why do that? Just pass anything. The creators of this opiate of the masses understand about as much as Bush understood the sociological structure of Iraq.

If someone would only try to get it right. Nope.

 

[Fern]

Heh. You remid me of the way Nixon declared victory in Vietnam, as we were leaving.

Sactoking isn't a lawyer, I suspect, and neither am I, so it seems best to leave the interpretation of statutes to them, don't you think?

The IRS has a history of delaying implementation of various measures when pressured by reason-

http://www.cooley.com/showalert.aspx?Show=57460

http://www.mintz.com/newsletter/2011/advisories/0864-0111-nat-elb/web.htm

I'm sure there are more, as well.

So, uhh, you guys are demanding implementation on schedule, or what?

WRT to your first link - no - the IRS did not unilaterally decide to postpone anything passed by Congress.

The first link discusses withholding FICA and FUTA taxes on Incentive Stock Option ("ISO") income. In 1971 the IRS issued their opinion that ISO was not subject to FICA and FUTA income (the law itself does not specify).

In 2002 the IRS changed its mind and issued proposed regulations (IRS tax rules) saying ISO was subject to FICA and FUTA withholding beginning in 2003.

So, first understand the IRS was only delaying its 'own' new rule.

In fact, Congress stepped up to clear the confusion and passed a provision in the American Jobs Creation Act that made clear that FICA/FUTA withholding did not apply to ISO income.

As regards your second link, I'm not familiar with the law (it isn't even in force yet, wasn't scheduled to begin applying until 2014) so cannot comment. If I have time I'll look into. However, I have some doubt that the IRS is unilaterally delaying Congressionally passed legislation. For one thing that law doesn't appear to take effect until 2014 (now 2015 since Obama delayed it) and for another the IRS simply doesn't have that power. In federal tax law when we have a problem like this (law cannot be implemented due to confusion) Congress passes a 'technical correction act' fixing the problem. Congress does this because the IRS cannot unilaterally fix such problems.

(However, there are cases where Congress delegates its legislative powers over to the IRS. Although not very common, Congress sometimes passes a law that says 'this or that is now taxable, and we'll leave it up to the IRS to detail in regulations'. These are called "statutory regulations" and have the force of law (as if passed by Congress).)

Fern

 

[Jhhnn]

Another righty hoping for America to fail? Color me surprised! /s

That's the essence of it. If the voters won't let them run the Country, they'll be damned if they'll let anybody else do it. It's scorched earth every millimeter of the way, with hostage taking, too.

It's the new Patriotism on the Right.

 

[Jhhnn]

WRT to your first link - no - the IRS did not unilaterally decide to postpone anything passed by Congress.

The first link discusses withholding FICA and FUTA taxes on Incentive Stock Option ("ISO") income. In 1971 the IRS issued their opinion that ISO was not subject to FICA and FUTA income (the law itself does not specify).

In 2002 the IRS changed its mind and issued proposed regulations (IRS tax rules) saying ISO was subject to FICA and FUTA withholding beginning in 2003.

So, first understand the IRS was only delaying its 'own' new rule.

In fact, Congress stepped up to clear the confusion and passed a provision in the American Jobs Creation Act that made clear that FICA/FUTA withholding did not apply to ISO income.

As regards your second link, I'm not familiar with the law (it isn't even in force yet, wasn't scheduled to begin applying until 2014) so cannot comment. If I have time I'll look into. However, I have some doubt that the IRS is unilaterally delaying Congressionally passed legislation. For one thing that law doesn't appear to take effect until 2014 (now 2015 since Obama delayed it) and for another the IRS simply doesn't have that power. In federal tax law when we have a problem like this (law cannot be implemented due to confusion) Congress passes a 'technical correction act' fixing the problem. Congress does this because the IRS cannot unilaterally fix such problems.

(However, there are cases where Congress delegates its legislative powers over to the IRS. Although not very common, Congress sometimes passes a law that says 'this or that is now taxable, and we'll leave it up to the IRS to detail in regulations'. These are called "statutory regulations" and have the force of law (as if passed by Congress).)

Fern

So, uhh, if Congress is displeased, they can pass legislation to demand implementation, right? Where is it?

What we're getting instead is demands from the usual mouthpieces to delay funding for the IRS, which will obviously force them to do so, if only in the doublespeak of Repubs.

Too bad that the IRS didn't just say that budget cuts & lack of funding have prevented them from being ready at the prescribed time, huh?

How'd that happen, anyway?

 

[Matt1970]

Isn't giving a pass on the business mandate while not giving a pass on the personal mandate bending over the middle class? How many poor saps were working for companies with 50+ employees whaiting for thier company to insurance to have to kick in now have to pay for it themselves or pay the TAX.

 

[Fern]

So, uhh, if Congress is displeased, they can pass legislation to demand implementation, right? Where is it?

That's stupid, they've already passed legislation for the start date. Are they suppose to pass it again adding the words "WE'RE SERIOUS THIS TIME DAMMIT!" in bold and caps?

I do think the correct thing is for Obama to ask Congress to pass a simple one sentence/paragraph bill extending the date.

What we're getting instead is demands from the usual mouthpieces to delay funding for the IRS, which will obviously force them to do so, if only in the doublespeak of Repubs.

Too bad that the IRS didn't just say that budget cuts & lack of funding have prevented them from being ready at the prescribed time, huh?

How'd that happen, anyway?

It doesn't appear that funding for the IRS has much, if anything, to do with it.

More lawyers won't help. So many additional (non-IRS) regulations are being generated it cannot be kept up with.

The IRS's job on regulations for Obamacare is one of the fastest I've seen. The writing of IRS regulations has long taken years. The process is exceedingly slow even when done quickly (issue Proposed Regs for comment, then Temporary regs, then ultimately Final Regs), other regulation writing projects have long been on backlog status. E.g. the PFIC laws were passed in 1986 and most regulations still do not exist. Recently the IRS announced they were just giving up and (final) regulations would not be issued.

For anyone that's ever tried it, writing explanations of complicated laws is terribly difficult. Now consider that the explanation itself becomes law binding the IRS. You've got to be damned careful.

It's not just IRS regulations that are a problem (those are expected later this year anyway), it's a number of things including the exchanges etc IIRC.

In any case, the last f'ing thing the IRS should do is complain about funding given the numerous and recurring cases of incredible fraud and waste.

Fern

 

[werepossum]

I'll hand it to you. No matter how many times you get put down your cranium remains impenetrable. You wouldn't know victory if it bit you in the face.

Have you ever considered that those who wrote the legislation which likely has an enormous number of unintended consequences had ought to have gotten their ducks in a row?

Na, why do that? Just pass anything. The creators of this opiate of the masses understand about as much as Bush understood the sociological structure of Iraq.

If someone would only try to get it right. Nope.

He certainly does have a talent there. The DOE should be investigating his head, for anything that dense must be fissionable. New energy source!

 

[Angry Irishman]

Hold on everyone, hold your horses. Nancy Pelosi just cleared things up...nothing to see here.

http://www.washingtonpost.com/blogs...d9e4394-ea7b-11e2-aa9f-c03a72e2d342_blog.html

 

[Hayabusa Rider]

Hold on everyone, hold your horses. Nancy Pelosi just cleared things up...nothing to see here.

http://www.washingtonpost.com/blogs...d9e4394-ea7b-11e2-aa9f-c03a72e2d342_blog.html

And now we know who a certain poster is

 

[Jhhnn]

In any case, the last f'ing thing the IRS should do is complain about funding given the numerous and recurring cases of incredible fraud and waste.

Gotta throw in that accusatory feel-good red herring to achieve the desired effect, huh?

I expect we'll have an announcement applying the same delay to the individual mandate sometime in the near future, as well, or just non-enforcement.