Could ACA delay lead to more legal woes, changes?

How can the IRS and the Obama administration simply waive a key provision of the Patient Protection and Affordable Care Act passed by Congress? Section 1513(d) of the law unequivocally states that the employer mandate “shall apply to months beginning after December 31, 2013.” Could the administration's decision to delay the penalty on employers of more than 50 full-time employees for not providing coverage to their workers be challenged in court? Ironically, Darrell Issa (R-Cal.), chairman of the House Oversight and Government Reform Committee, who strongly opposes the ACA, has hinted at a legal challenge, calling the delay “extra legal.”

Republican presidential candidate Mitt Romney was ridiculed last year when he promised that on his first day in office he would issue an executive order exempting the states from all Obamacare requirements. Critics noted that was not something a president has the constitutional authority to do. Now President Barack Obama's administration has done something similar, though far more limited.

Of course, it isn't the first time the Obama administration has delayed ACA requirements. As Tim Jost, a Washington & Lee University law professor, points out, the administration previously delayed implementation of provisions barring employers from offering Cadillac coverage to executives and skimpy coverage to everyone else. It also delayed implementation of the employee-choice feature of the small business health insurance exchanges until 2015.

But can the Obama administration get away with this? The answer is almost surely yes. While lots of lawsuits have been brought over the years against administrations charging they delayed enforcement or ignored laws—many of them brought by environmental groups against Republican administrations—executive branch agencies have discretionary authority in implementing laws.

The Administrative Procedures Act says a court may compel agency action that's unlawfully delayed or withheld. But it's unlikely any individual or organization has legal standing to bring such a suit. It would have to be brought by someone who was concretely injured by the IRS' failure to enforce the penalty against employers who didn't provide health insurance in 2014. Remember that workers who do not receive employer coverage in 2014 still can get subsidized individual coverage through their state insurance exchange. So it would be hard to show injury.

Let's not forget there are other areas where the Obama administration has firmly refused to change or delay ACA provisions, arguing that the law is the law and it doesn't have the power to change it unilaterally. One example is the administration's refusal to accept proposals from Republican-controlled states to expand Medicaid to only a subset of people eligible for expanded coverage under the reform law.

But now that the Obama administration has apparently buckled to pressure from business groups and delayed the employer mandate, how can it resist pressure to modify many other parts of the law that powerful interest groups want changed?

This isn't the American governing process that we learned about in civics class. And here's a safe prediction: This won't be the last effort we see to change the healthcare reform law through “extra legal” means.

Follow Harris Meyer on Twitter: @MHhmeyer