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Unconstitutional Obamacare Power Grab

Written by Tom Fitton

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JW Asks Court to Invalidate President Obama’s Unconstitutional Obamacare Power Grab

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 yesterday 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 in the face of 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.

So 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.

At the center of this court filing is a key question: 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?

Judicial Watch put this question 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 taking effect beginning 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 as well.

“I am fed up with Washington, DC dictating our futures and playing politics with the law of the land. This is just 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 directly 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. What is sad is that the administration’s blatant disregard for the law hurts more than inside the Beltway, it hurts all over the homeland,” stated Dr. Kawa. “Transparency and rule of law shouldn’t just be terms in government class textbooks, 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.

More to come!

Did the CIA Director John Brennan Leak Classified Details to the Press?

Attorney General Eric Holder once called it “within the two or three most serious leaks I have ever seen.” No, I’m not talking about Eric Snowden’s document dump detailing a massive NSA spying scheme. I’m talking about the release of information related to international efforts to thwart a terrorist attack.

And here’s the key question: Was the current CIA Director John Brennan the man behind the leak? Documents obtained by JW confirm the answer is “yes.”

Judicial Watch released this week the full transcript of a May 7, 2012, teleconference between then-White House top counterterror adviser John Brennan and various TV terrorism consultants, in which Brennen reveals that the U.S. and its allies had “inside control over any plot” in its efforts to thwart a May 2012 terrorism bomb plot. Brennan is now CIA director. We got the transcript pursuant to a Freedom of Information Act lawsuit.

The Brennan revelation of “inside control” – an intelligence community euphemism for spies within an enemy operation – reportedly helped lead to the disclosure of a previously well-kept secret at the heart of a joint U.S.-British-Saudi undercover terrorism operation inside Yemen-based al Qaeda in the Arabian Peninsula (AQAP). According to a Reuters May, 18, 2012, report:

The next day’s headlines were filled with news of a U.S. spy planted inside Yemen-based Al Qaeda in the Arabian Peninsula (AQAP), who had acquired the latest, non-metallic model of the underwear bomb and handed it over to U.S. authorities.

At stake was an operation that could not have been more sensitive — the successful penetration by Western spies of AQAP, al Qaeda’s most creative and lethal affiliate. As a result of leaks, the undercover operation had to be shut down.

In May 2013, the Justice Department launched a wide-ranging investigation of leaks surrounding the thwarted “underwear bomb” terrorist attack. As I mentioned above, in defending the department’s seizure of phone records from The Associated Press, Attorney General Eric Holder described the leaks as “within the two or three most serious leaks I have ever seen.”

In the transcript obtained by Judicial Watch, Brennan led the phone call where he addressed the top terror consultants for ABC, NBC, CNN, and CBS including Caitlin Hayden, Frances Townsend, Richard Clarke, Roger Cressey, and Juan Zarate. In an apparent attempt to soft-peddle the thwarted terrorist attack, Brennan twice exposes the covert operation; first at the outset of the call, then as the conference draws to a close:

Brennan later defended his comments in his February 2013 Senate Intelligence Committee confirmation hearing, while admitting to Sen. James Risch (R-ID) that he had, indeed, leaked the information about “inside control;” a leak Risch characterized as “the leak the Justice Department is looking for”:

For all the news and controversy about NSA surveillance, I think the bigger issue is the congenital lying and skullduggery that seems to be increasing with leaders in our national security establishment. Panetta, Clapper, Petraeus, and Brennan all seem to be in the mold of prevaricators like Barack Obama and Bill Clinton rather than truth-tellers like Gen. Patton.

It is abundantly clear that the Obama White House, in a self-serving attempt to garner favor with the American people over its handling of the “underwear bomb,” blew the cover on a vital covert operation and exposed our agents to serious danger. Edward Snowden, the AP, Fox News and other targets of leak investigations may not be able to understand why Brennan has been able to skate by for this damaging leak.

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I want to close this week by wishing all of you and your families, on behalf of all of us here at Judicial Watch, a very Merry Christmas. There is no doubt that 2013 has been burdened with serious challenges to the Constitution and our country – many of them daunting to say the least.

And it is at this time of year that I am reminded just how lucky we are at Judicial Watch to have such a passionate and patriotic group of friends and supporters. Together we have earned some key victories this year and more are on the horizon.

So take a break. You’ve earned it. Enjoy your family members and your friends this holiday season as we celebrate Christmas and the New Year. (We will do our best to stand watch for you here in Washington during the break.) And rest assured that Judicial Watch will do everything in its power to make certain that better days are ahead for honest and constitutional government.

God bless you!

Until next week…

Tom FittonJudicial 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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