I’ve previously argued that if the Obamacare website problems go on longer than the Obama administration thinks they will, they may need to delay the individual mandate for people in states that lack functioning websites. That would only become a live option early next year: As Sarah Kliff points out, there’s a two-month delay in the individual-mandate penalty, which means people can go without insurance until March before the fine kicks in.
How would a delay work, legally speaking? Pretty easily, it turns out. Nicholas Bagley and Austin Frakt explain that the Department of Health and Human Services can unilaterally suspend the individual mandate if need be:
If necessary, [Secretary Sebellius] could draft a new rule instructing nonfunctional exchanges — including the federally operated ones — to issue blanket certifications on behalf of all of the uninsured in their states. With those blanket certifications, the penalty would be waived — and all without congressional action.
The real upside here is that, because it doesn’t require Congress, the administration could use a mandate delay to actually improve the functioning of the law, as opposed to using it to destroy the law, as Republicans in Congress have suggested. The Republican’s mandate-delay plan was to pass a fixed-length mandate delay — they proposed this before any website failures became public — as a condition for reopening the federal government, and then just continue to trade mandate delays for bills reopening government, so that the mandate would be delayed indefinitely. That’s rank sabotage.
Delaying the individual mandate only for states that can’t get the exchanges working, and reinstituting it when the exchanges come online, would be a way of making the program work. Again, that option is a long way off. But it’s there if the need arises. The fact that Obama has the power to do it, and doesn’t need to rely on a Congress bent on repealing the law, probably kills off Congress’s enthusiasm for delaying the mandate.