again, the ACA has generated controversy, hardened positions and made it
more difficult to project what will happen going forward.154 It would be
hard enough to predict how employers will deal with the ACA if their
decisions were driven only by rational calculations about how best to
balance their legal obligations with their self-interest; but when pique and
politics enter the picture, prognostication becomes substantially more
difficult.155
The future of the employer mandate is by no means clear. The
Administration has shown no eagerness to implement it and, as noted
earlier, might be just as happy to consign employment-based health
insurance to history.156 As noted, opponents of the ACA decry the mandate
while at the same time also decrying the Administration’s failure to
implement it more rapidly.157 Many are still calling for the total repeal of
Obamacare,158 and while the increased Republican composition of the 114th
Congress might seem to tilt the scales in favor of that, it is highly unlikely
that a repeal bill would ever make it to the President’s desk,159 where it
would most surely be met with a veto. That said, there are many on both
sides of the aisle who believe the ACA could use some revision.160 The
154. See Linda Feldmann, Has Obama Abused Executive Power? His 5 Most
Controversial Uses, The Christian Science Monitor (Aug. 1, 2014), http://
www.csmonitor.com/USA/Politics/DC-Decoder/2014/0801/Has-Obama-abused-executive-
power-His-5-most-controversial-uses/The-Affordable-Care-Act-Employer-Mandate-Delay
(where the employer mandate delay is listed number-one on the list); see also Complaint,
U.S. House of Representatives v. Burwell et al., No. 14-cv-01967 ( D. D. C. Nov. 21, 2014),
Allegations 42-50, available at http://online.wsj.com/public/resources/documents/
HouseACAcomplaint112014.pdf.
155. See Mary Mosquera, Delay in ACA Employer Mandate Adds Uncertainty,
HEALTHCARE PAYER NEWS (Feb. 11, 2014), http://www.healthcarepayernews.com/content/
delay-aca-employer-mandate-adds-uncertainty.
156. See Holan, supra note 104.
157. See Walsh, supra note 146; see also Complaint, supra note 154. Republican
representatives have, in fact, sued the Administration over the delay of the employer
mandate.
158. WASH. POST, TRANSCRIPT: Sen. Ted Cruz’s marathon speech against
Obamacare on Sept. 24 (Sep. 24, 2013), http://www.washingtonpost.com/sf/national/2013/
09/25/transcript-sen-ted-cruzs-filibuster-against-obamacare/.
159. See Jennifer Haberkorn, A GOP Senate Could Take on Obamacare - But Not
Repeal It, POLITICO (Sept. 15, 2014), http://www.politico.com/story/2014/09/2014-elections-
gop-senate-obamacare-110936.html (“ A Republican-controlled Senate cannot repeal
Obamacare, no matter how fervently GOP candidates pledge to do so on the campaign trail
this fall. But if they do win the majority, Senate Republicans can inflict deep and lasting
damage to the president’s signature law.”).
160. See Paige Winfield Cunningham & Kyle Cheney, Why Liberals Are Abandoning
the Obamacare Employer Mandate, POLITICO (July 6, 2014), http://www.politico.com/
story/2014/07/ obamacare-employer-mandate-108578.html (“[The employer mandate] cries
out for repair,” and evaluating Republican and Democratic voices calling for revision of the
mandate.).
