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Judicial Watch Sues Obama HHS to Obtain Early “Obamacare” Enrollment Records

From the same presidential administration that brought you the “if you like your health care plan, you can keep it” lie comes some new disingenuous “happy talk” regarding the numbers of people signing up for Obamacare. The country is experiencing a surge of interest, says the White House, a claim too often parroted by a lapdog liberal media.

But don’t believe the latest from the Obama administration. The website is not “fixed.”  In fact, you cannot reliably obtain health insurance on healthcare.gov.  The New York Times, no friend of conservatives, reports:

The problem is that the systems that are supposed to deliver consumer information to insurers still have not been fixed. And with coverage for many people scheduled to begin in just 30 days, insurers are worried the repairs may not be completed in time.

“Until the enrollment process is working from end to end, many consumers will not  able to enroll in coverage,” said Karen M. Ignagni, president of America’s Health Insurance Plans, a trade group.

So if you think you “enrolled” in Obamacare, you could be in for a crisis when you go to the doctor or have a medical emergency and you find out that you have no health insurance coverage!

Of course, the Obama administration has been engaging in fraud from the very beginning – first refusing to release any Obamacare enrollee numbers during the website’s train-wreck of a rollout, and then reportedly fiddling with the definition of “enrollee” to boost their numbers.

And this is why Judicial Watch lawyers went to court – to get the real enrollment numbers from the critical period of the Obamacare launch. On November 25, 2013, we filed a Freedom of Information Act (FOIA) lawsuit against the Department of Health and Human Services (HHS) seeking this data.

Per usual, we first asked for the information by filing a FOIA request, but were forced to go to court after HHS failed to respond as the law requires. Here’s what we’re after: “Any and all records concerning, regarding, or related to the number of individuals that purchased health insurance through healthcare.gov between October 1, 2013, and October 4, 2013.”

As you will recall, the Healthcare.gov website, officially launched on Tuesday, October 1, immediately encountered substantial problems typical of those reported by the Chicago Tribune:

Consumers seeking more information on their new options under the Affordable Care Act were met with long delays, error messages and a largely non-working federal insurance exchange and call center Tuesday morning.

Pressed for an explanation in a conference call with reporters on October 1, Marilyn Tavenner, head of the HHS Centers for Medicare and Medicaid Services, refused to disclose the number of people who had purchased insurance through the site saying, “We have just decided not to release that yet.”

Why? Obviously, in an age of instant access to data, the Obama administration knew right away that the numbers were embarrassingly low.  So rather than be transparent, the Obama gang stonewalled to give themselves more time to cook the books on enrollee data.

When the Obama administration finally began releasing its version of the enrollee numbers in November, many were skeptical of the numbers. In an article entitled, “Who Counts as an Obamacare Enrollee – the Administration Settles on a Definition,” the Washington Post revealed that the Obama administration had abandoned the conventional definition of a health plan enrollee, in an obvious attempt to inflate its figures.

“Health insurance plans only count subscribers as enrolled in a health plan once they’ve submitted a payment,” the Post reported. “That is when the carrier sends out a member card and begins paying doctor bills. When the Obama administration releases health law enrollment figures later this week, though, it will use a more expansive definition. It will count people who have purchased a plan as well as those who have a plan sitting in their online shopping cart but have not yet paid.”

Significantly, the HHS figures did not break down enrollment numbers by age. The administration had announced that its goal is to sign up 2.7 million people between the ages of 18 and 35, in an apparent attempt to help offset the risk of insurance pools consisting primarily of older, more sickly people, who traditionally drive up health care coverage costs. According to the website, Governing.com, “Officials said demographic information will be included in future releases but didn’t specify when.”

Without the complete HHS records, therefore, it remains difficult to confirm the accuracy of both the Obamacare visitor and enrollment figures. Complete raw figures are necessary to fully determine such pertinent information as the cost of premiums, the amount of subsidies given to those enrolled, demographics of those enrolled, whether an individual’s enrollment was based on the mandate, and whether the number of enrollees is even a helpful statistic due to website glitches.

Hence, our FOIA request and subsequent November 25 lawsuit.

Let me be blunt. We think the Obama administration is telling more lies about these Obamacare enrollment numbers. And sure enough, the administration refuses to turn over one document to us about these basic numbers concerning the Healthcare.gov website. The fact that we must now go to federal court to get simple answers about how many people signed up for Obamacare shows that this administration has utter contempt for the people’s right to know.

Judicial Watch and AEF File High Court Brief in Support of Challenge to Obama NLRB Recess Appointments

From the moment he took his oath of office, President Obama realized something very important with respect to imposing his agenda: Personnel is policy. If he was going to “fundamentally transform” America, as he promised, he was going to need to surround himself with the most radically leftwing allies he could find.

Of course, when it comes to appointing high level officials with great power and responsibility, the Constitution has a process designed to make certain that the U.S. Senate can act as a check on the Executive Branch by requiring Senate confirmation for these powerful government positions.

But Obama knows full well his radical friends did not have a shot of making it through the Senate vetting process. So he simply ignored the law and the U.S. Constitution and appointed them without bothering to wait for Senate approval.

Case in point: The unconstitutional “recess appointments” used to install three individuals to the National Labor Relations Board (NLRB).

The U.S. Supreme Court agreed to review a U.S. Court of Appeals for the District of Columbia ruling in the case of National Labor Relations Board v. Noel Canning that held unconstitutional President Obama’s January 4, 2012, recess appointments of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to the National Labor Relations Board.

The Appeals Court held that the NLRB lacked a quorum to decide an unfair labor practice case because two of the three members on the board panel deciding the case (Block and Flynn) had received recess appointments in violation of the Constitution’s Recess Appointment Clause.

Although the Recess Appointments Clause allows a president to fill vacancies occurring while Congress is in recess, the Senate met in pro forma meetings every three business days. The Appeals Court, therefore, determined that the Senate was not in recess on the days the Senate did not meet because for the purpose of the Recess Appointments Clause “recess” is defined as the time between, rather than within, sessions of Congress.

Though previous presidents have made intrasession recess appointments “if they are of substantial length,” the Obama administration was the first to make such appointments during pro forma sessions of the Senate.

So the Senate says it was not in recess. The appellate court says the Senate was not in recess. And the president says he’ll decide when the Senate is in recess or not. Talk about arrogant defiance of the law.

JW has been critical of these appointments from the get-go (as we have of the many unaccountable czars installed by the president). And on November 25, Judicial Watch officially registered its objections once again, by jointly filing an amici curiae brief with the United States Supreme Court with our friends, the Allied Educational Fund (AEF). Our brief supports the U.S. Court of Appeals decision that the Obama NLRB appointments of January 2012 violated the Constitution’s Recess Appointments Clause.

The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.”

Stating that “The Senate alone can determine when it will hold session in conformity with its obligations and delegated powers by the Constitution,” here’s what the Judicial Watch/AEF amici brief specifically argues:

I.      The constitutional text is clear and consistent with the Framers’ intent that recess appointments are restricted to the recess between Senate sessions.

The Court [of Appeals] correctly pointed to the significant distinction of the Framers’ use of “the Recess,” rather than “a recess.”  “Then, as now, the word ‘the’ was and is a definite article…’noting a particular thing…’”  “As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’”

II.    The Senate determines its own rules and procedures.

The President’s supposed Recess appointments are unconstitutional because the Senate was in session at the time they were made … On December 17, 2011, the Senate decided unanimously to convene every three days from December 17, 2011, to January 20, 2012, including on, but not limited to, January 3, 2012, and January 6, 2012… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.

III.  The inconsistent application of recess appointments is irrelevant to the interpretation of the recess appointment clause.

[T]he Board cannot deny the dilemma presented by the inconsistent interpretations of prior Presidents, nor can it deny the lack of such temporary appointments for at least the first eighty (80) years following the Constitution’s ratification … In fact, the President had taken the same position when then Solicitor Elena Kagan’s letter was filed with the Supreme Court on behalf of Respondent in New Process Steel, L.P. v. NLRB stating that “the Senate may act to foreclose the [recess appointment] option by declining to recess” and convening pro forma sessions every three days…The constitutional interpretation of the validity of Recess appointments cannot be based on the inconsistent past intra-session appointments politically motivated by one side of the aisle or another.”

Clearly these Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head. Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority. And Congress is finally taking notice…

It’s About Time! Congressional Hearing on Obama Lawlessness

As we have been pointing out for years, President Obama has egregiously overstepped his constitutional authority on too many occasions to count. He either thinks that constitutional limits on his authority are of no consequence or, in the case of making new laws through fiat, Obama thinks he is a “one-man Congress.”

How bad is it? Even former liberal Vermont Governor and DNC Chairman Howard Dean, recently wondered aloud whether or not the president had stepped out of bounds with his decision to rewrite Obamacare! (He was right. But Obamacare is just the very tip of a very large iceberg.)

As you might expect, many members of Congress have had enough. And that’s why the House of Representatives held a critical hearing on Obama lawlessness this week, entitled “The President’s Constitutional Duty to Faithfully Execute the Laws.”

Per The International Business Times:

Convinced that President Barack Obama is writing his own laws on issues such as health insurance and immigration reform, the House Judiciary Committee on Tuesday will examine just how much latitude the nation’s chief executive has to do so.

That’s when the committee will hear from four experts during a 10 a.m. hearing on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The experts have a mix of legal, constitutional and health policy backgrounds.

Congressional Republicans have accused the president of circumventing the nation’s laws he disagrees with. They have specifically cited Obama’s actions on the Affordable Care Act (aka Obamacare), which Republicans have tried almost 50 times to repeal, and also want to knock him for enacting policy initiatives on issues that failed to win Congress’ approval, such as the DREAM Act.

Committee Chairman Rep. Bob Goodlatte (R-VA) set the tone for the discussion with his opening statement: “The Obama administration…has ignored the Constitution’s carefully balanced separation of powers and unilaterally granted itself the extra-constitutional authority to amend the laws and to waive or suspend their enforcement. This raw assertion of authority goes well beyond the ‘executive power’ granted to the President and specifically violates the Constitution’s command that the President is to ‘take care that the laws be faithfully executed.’”

During the hearing, the Committee heard from four top legal and constitutional experts (click the links below to read their written statements): Professor Jonathan Turley, George Washington University Law School; Professor Nicholas Rosenkranz, Georgetown University Law Center; Simon Lazarus, Constitutional Accountability Center; and Michael F. Cannon, Director of Health Policy Studies, Cato Institute.

To a man, each of these experts, while focusing on different aspects of the “Obama way” in Washington and documenting their arguments in great detail, came to the same conclusion: This president is out of control.

Jonathan Turley’s explained in his opening remarks:  “People of good faith can clearly disagree on where the line is drawn over the failure to fully enforce federal laws. There is ample room given to a president in setting priorities in the enforcement of laws. A president is not required to enforce all laws equally or dedicate the same resources to every federal program. Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law.”

Strong words from a respected academic.

Of course among the most egregious examples of Obama lawlessness cited by these experts is the President’s shameless disregard for our immigration laws, and his steadfast commitment to enacting illegal alien amnesty by hook or by crook.

Nicholas Rosenkranz, for example, noted that the Congress has repeatedly considered and rejected the DREAM Act, a legislative initiative supported by the president that would “exempt a broad category of illegal aliens” from immigration law. Unlike Obamacare, says Rosenkranz, where Obama refuses to enforce a law he signed, in the case of the DREAM Act, “the President is complying meticulously — with a bill that never became a law.”

On June 15, 2012, the President announced that he would “simply not enforce the INA against the precise category of aliens described in the DREAM Act,” noted Rosenkranz. Who needs Congress? Not this president.

Now congressional hearings are important. And, as the nation’s most effective government watchdog organization, we welcome congressional attention to the president’s unconstitutional unlawful behavior. Better late than never on this issue, I suppose. Some Republicans are even beginning to talk of impeachment.

But we have been on the case since Day One.  You can see our special reports on these topics on our website, look at the documents we uncovered through our investigations, or read our legal filings documenting the president’s abuse of office.  And, of course, we have our New York Times Bestseller Corruption Chronicles to serve as your handy reference guide for this administration, which is off the rails and out of control.

And if you want more of the unvarnished truth about Obama scandals, the best place to get the latest news is at JW’s media education panels. And, as luck would have it, we have a very important “Amnesty Update” panel coming up next week.

Per usual, we have assembled a top notch panel of experts of our own, including Congressman Steve King (IA-04), U.S. House of Representatives; Mark Krikorian, Executive Director of the Center for Immigration Studies and Rosemary Jenks, Director of Government Relations for Numbers USA.

The panel, which will be held Tuesday, December 10, 2013, from 10:30 to 11:30 am at JW headquarters, will examine the status of amnesty efforts in Congress and President Obama’s controversial decisions to suspend deportation for entire categories of illegal aliens.
I hope you can join us. The event is free of charge and open to the press and the public. (You can RSVP if you do plan to attend at This email address is being protected from spambots. You need JavaScript enabled to view it." target="_blank">This email address is being protected from spambots. You need JavaScript enabled to view it..) But if you can’t make it, then you can see it streamed live at http://www.judicialwatch.org/live.

Tom FittonUntil next week… Tom Fitton, President

Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation's public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.

 

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