Washington has become the Scrooge that ruins Christmas for those of us involved in public policy. Instead of being a quiet period to commemorate the birth of Christ, enjoy time with our families, and to pleasantly work to deal with end-of-year demands in business, the politicians in Washington have turned the Christmas holidays into a time to upend the Constitution, pass deplorable legislation, and leak stories designed to disappear as most Americans focus on things other than politics.
True to this, our out of control president recently rewrote Obamacare for the 14th time by eviscerating, through sheer fiat, the individual mandate. The disruption will be massive. Americans who followed the law will be made once again into suckers, and Establishment DC will tsk-tsk. Congressional Democrats are stricken by their Obamacare disaster, so they do nothing in the face of Obama’s acting on as a “one-man Congress.” And most Republicans are happy to take advantage of the situation politically, while doing nothing substantively to vindicate the Constitution and rescue Americans from the Obamacare scourge.
As is so often the case in matters of rule of law, Judicial Watch is happy to step into the leadership gap. We just made a key filing in an important lawsuit that seeks to force Obama to obey his own Obamacare law.
Specifically, does President Obama have the authority to ignore a clear, congressionally-imposed deadline affecting hundreds of thousands of employers and millions of employees across the country on a matter of unquestionable importance?
That is the question Judicial Watch put to a federal court on December 13, 2013, in a motion for summary judgment filed on behalf of Dr. Larry Kawa of Kawa Orthodontics in a lawsuit against the U.S. Department of Treasury, Secretary of Treasury Jack Lew, the Internal Revenue Service and IRS Acting Director Daniel Werfel over the Affordable Healthcare Act (ACA), also known as Obamacare.
This landmark lawsuit, filed in the U.S. District Court in the Southern District of Florida, challenges the Obama administration’s decision to delay the enactment of the so-called “employer mandate” provision of Obamacare.
Judicial Watch attorneys, on behalf of Dr. Kawa, addressed this question directly:
The answer to the question posed by this lawsuit is quite plainly “No.” Defendants’ delay of the mandate violates the Administrative Procedures Act (“APA”). It exceeds Defendants’ statutory jurisdiction, authority, and limitations, is contrary to constitutional right, power, or privilege, and is otherwise not in accordance with law.
Rejecting a date enacted into law by Congress and picking a new date more to the Executive Branch’s liking is the epitome of arbitrary and capricious agency action. The Court should reject Defendants’ lawlessness and restore the rule of law to the Executive Branch’s implementation of the ACA. It should declare Defendants’ postponement of the “employer mandate” to be unlawful, set aside Defendants’ unlawful agency action, and reinstate the date established by Congress. The Court also should enjoin any further unauthorized delay of the mandate’s effective date.
The employer mandate, which subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage to their employees, is considered “a major pillar of the ACA.” By law, the mandate was required to take effect January 1, 2014. On July 2, 2013, however, the Obama administration officially postponed the mandate without the approval of Congress.
And what does the IRS have to say about all of this?
Absolutely nothing. Sidestepping the constitutional issues entirely, the agency asked the court to toss the lawsuit, making the claim that Dr. Kawa “suffered no harm whatsoever” and thus lacks the “standing” to bring the lawsuit. The agency further stated that whatever funds Dr. Kawa expended to comply with the mandate is water under the bridge. Nothing the courts can do about it now.
However, according to JW’s opposition to the IRS motion to dismiss, also filed on December 13, 2013, the unlawful delay of the “employer mandate” has caused Kawa Orthodontics “to lose the substantial time and resources it expended and the significant opportunity costs it incurred in anticipation of” the controversial provision scheduled to take effect next year.
And Dr. Kawa is not alone. According to the Agency for Health Research and Quality of the U.S. Department of Health and Human Services, the number of employers in the United States having more than 50 employees is as high as 1.6 million, each of whom could be affected.
“I am fed up with Washington, DC dictating our futures and playing politics with the law of the land. This is just one more example of DC’s career politicians thinking more about the next election than the next generation,” said Dr. Larry Kawa of Kawa Orthodontics. “President Obama isn’t above the law.”
At the end of the day, all Dr. Kawa is asking the court to do is to order the Obama administration to obey its own Obamacare law! The president shouldn’t be able to rewrite a law because it might have unpleasant political consequences. This is an unconstitutional power grab that must be stopped by the courts as quickly as possible.
And contrary to the bogus claims of the IRS, President Obama’s decision to rewrite Obamacare has harmed and continues to harm Dr. Kawa’s business – and, as a direct consequence, the many other citizens Dr. Kawa helps in his community.
Dr. Kawa, a graduate of NYU School of Dentistry, has been a local business owner and community leader for over 20 years. He is on the board of directors for both PROPEL, a nonprofit foundation for underprivileged youth, and the Lynn University College of Business.
“I work hard so that I can give back to my community. I help low-income youth by providing them free braces, and even sponsor Little League baseball,” stated Dr. Kawa. “Transparency and rule of law shouldn’t just be terms in government class text books, they should be principles that are followed in government offices.”
We are grateful to be working with citizen-patriots like Dr. Kawa who are willing to take on this dictatorial administration in court in order to protect our precious Constitution.
Here are some of JW’s other filings related to the lawsuit if you would like the full details on this most important lawsuit: request for judicial notice; request for oral argument; and statement of material facts.
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