This is from a self described ardent supporter of PPACA, University of Michigan Law Professor Nicholas Bagley writing at the New England Journal of Medicine:
... The U.S. Constitution imposes a duty on the President, as head of the executive branch, to “take Care that the Laws be faithfully executed.” The President may decline to enforce a law, but ignoring it altogether would violate his constitutional duty.
At what point does a decision not to enforce the law ripen into a decision to dispense with it? The answer is not always clear. Take, for example, the delay of the ACA's insurance rules for people who want to keep their current, nonconforming plans. Viewed one way, the delay just postpones enforcing the ACA's rules against relatively few existing health plans, even as those rules take effect for the large majority of plans, including plans sold on the insurance exchanges. From another perspective, the delay flouts provisions of the ACA that had become politically inconvenient. No crisp line separates routine nonenforcement from blatant disregard.
For several reasons, however, the recent delays of ACA provisions appear to exceed the scope of the executive's traditional enforcement discretion. To begin with, the delays are not “discretionary judgment[s] concerning the allocation of enforcement resources” that, per Heckler, are at the core of the executive branch's power to decline to enforce laws. Instead, they reflect the administration's policy-based anxiety over the pace at which the ACA was supposed to go into effect. The mandate delays, for example, were designed to “give employers more time to comply with the new rules.” Similarly, the postponement of the insurance requirements aims to honor the President's promise that “if you like your health care plan, you can keep it.” ...
