Treasury Sued for Records About Obamacare Employer Mandate Delay

President Obama seems to be under the mistaken impression that he’s a one-man Congress who can simply ignore the law to comport with his political interests.

JW filed a lawsuit on behalf of Kawa Orthodontics, owned by Florida orthodontist Dr. Larry Kawa, that directly challenges the president’s unlawful delay of the “employer mandate” that forces businesses of a certain size to provide a certain level of health insurance for employees. (JW has appealed a lower court decision dismissing the lawsuit on “standing” grounds.)

Separately, JW launched an investigation to determine upon what legal authority Obama justified his decision to delay the mandate in the first place. Simple question, yes? But unfortunately, the Obama Treasury Department has refused our requests for this information, and we were forced to file a Freedom of Information Act (FOIA) lawsuit against the Treasury to get the records.

We filed the original FOIA request on October 28, 2013 and have received no response from the “most transparent administration in history.” So the Obama administration violates the Obamacare law, then violates the Freedom of Information law to cover it up. 

The law-breaking began on July 2, 2013, when the Obama administration disclosed in a blog post by Assistant Treasury Secretary for Tax Policy Mark Mazur that it would ignore the law and unilaterally delay the controversial “employer mandate,” which was to have gone into effect in January 2014, until 2015. On February 10, 2014, the administration again, unlawfully and unilaterally, delayed the employer mandate, this time until 2016.

And what was the reason for these extraordinary delays? Depends on who you ask.

The administration claimed it was delaying the mandate to give companies time to comply with the reporting procedures. However, a report on the delay in Bloomberg news at the time suggested that “the delay potentially shields Democratic candidates from a backlash generated by the additional regulations on employers.”

With a White House that openly attacks measures against election fraud, uses the IRS to bully conservative organizations, and asks its supporters to snitch on political adversaries while compiling an enemies list, I don’t think there is any doubt President Obama ignored the law for political considerations. And certainly our lawyers have found no legal basis for ignoring the plain words of the Obamacare law that the president purports to support!

Accordingly, the key question at the center of our investigation is what “controlling legal authority” (to borrow an Al Gore classic) did Obama use to ignore the law? We still do not have an answer. Worse, we don’t even know if the Treasury Department bothered to ask the question!

On January 16, 2014, the House Committee on Oversight and Government Reform staff conducted a transcribed interview with Mazur, in which he consistently denied “recollection” about whether the White House, the Department of the Treasury, or the Internal Revenue Service inquired into the legal authority of the “employer mandate” delays.

Let me get this straight: The president decided to ignore a law passed by Congress, and Mazur didn't remember anyone asking if it was all legal? I find that impossible to believe. (This is Constitution 101. Congress makes the laws. The Executive enforces them.)

In a March 22, 2014 commentary entitled “Was Delaying the Employer Mandate Legal? Did the IRS Even Check?” The Washington Post’s Jonathan Adler wrote:

Given the clear language of the PPACA, it was whether the administration had the legal authority to make this move. … Treasury has yet to identify an applicable precedent that would justify waiving a tax liability prospectively as the administration is purporting to do.

So The Washington Post asked the question, but the Treasury Department did not? We’re not buying it, which is why we are now in court. And we’re expecting a fight.

The stonewall on Obamacare from the very beginning has been Nixonian. While we still haven’t been given documents under FOIA that would tell us under what legal authority the president decided to shelve the mandate, we do know the impact it has had on businesses across the country. For example, due to the unlawful delay, Kawa Orthodontics lost “the value of its substantial efforts” in preparing for the mandate as originally scheduled.

According to a July 30, 2013 letter from the director of the Congressional Budget Office to the chairman of the Committee on the Budget, U.S. House of Representatives, the delay of the “employer mandate” will result in an estimated loss of $10 billion in penalty payments by employers and approximately 1 million fewer people are expected to be enrolled in employment-based coverage in 2014 than the number previously projected. This will occur primarily because of the one-year delay in penalties on employers.

And speaking of enrollment figures: President Obama recently crowed about the number of people who have allegedly signed up for Obamacare – 7.1 million according to his number crunchers. But it’s hard to find anyone buying what he is selling. Remember the term "fuzzy math"?

We had to sue, again, to get basic information about Obamacare’s early enrollment numbers (Judicial Watch v. U.S. Department of Health and Human Services, Case No. 1:13-cv-01855). We are still waiting for answers. Given his history of lies and stonewalling, without supporting documentation, I don’t believe much of anything President Obama has to say about Obamacare.

This distrust is widely shared. The 7.1 million number is “under a cloud of suspicion,” Breitbart News reported, noting there were large gaps in what we know about the figures. “Phony number,” said Fox News contributor Charles Krauthammer. “These guys go six months without any idea what the numbers are, and all of a sudden it’s to a decimal point,” he said. And London's Daily Mail summed up the reason for all this distrust:

“Buried in the 7.1 million enrollments he announced in a heavily staged appearance is a more unsettling reality. 

Numbers from a RAND Corporation study that has been kept under wraps suggest that barely 858,000 previously uninsured Americans – nowhere near 7.1 million – have paid for new policies and joined the ranks of the insured by Monday night.

And then there are the folks who paid their premiums but did not get coverage. The CBS affiliate in Las Vegas reported that as the president was doing his victory lap, residents of Las Vegas were filing the first class action lawsuit against the state of Nevada, the Nevada state-run health exchange, and the company that built it, Xerox.

Just days after the deadline to enroll for insurance coverage through Nevada Health Link, the first class-action lawsuit has been filed on behalf of residents who say they signed up and paid their premiums – but were never given coverage.

Law firm Callister & Associates filed the lawsuit on behalf of Larry Basich, who signed up for state health insurance and paid premiums as far back as November but then was not covered following a January 3rd triple bypass procedure that saw his $400,000 in medical expenses passed between the wrong insurance companies, the Las Vegas Review-Journal reported.

President Obama can spin as much as he wants. But the American people know well that Obamacare has given us nothing but chaos from day one, from the disastrous HealthCare.gov rollout to the constant “re-imagining” of the law by the president to fuzzy math about enrollment figures. And it will continue, as will our pursuit of answers and justice.


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