Judicial Watch Considers Obamacare Challenge

How bad is Obamacare? In July, President Obama himself unilaterally rewrote the law. Why? Because businesses started cutting hours, slashing benefits and reducing staff to avoid paying a hefty $3,000 per-employee penalty/fine/tax–whatever you want to call it–mandated by Obamacare.

And what did the Obama administration do? It simply announced that the employer mandate, scheduled to go into effect in January 2014, would be delayed one year.

“We have listened to your feedback,” Treasury official Mark Mazur said on July 2, announcing the delay in the implementation of the employer mandate, “and we are taking action.”

Is anyone buying the claim that the Obama administration’s move was in response to listening to feedback from American businesses? Didn’t think so.

This is about politics. Hardest hit by the resulting job cuts were low-wage employees, a key voter demographic for Democrats. Remember, we’re heading into mid-term election season. The last thing the president needs is for his loyal base to abandon the Democrats’ cause at a time when he cannot afford to lose seats in Congress.

But regardless of the president’s reasons, the key question is this: Does he have the authority?

Per The New York Times, “Senator Tom Harkin of Iowa, the chairman of the Senate Health, Education, Labor and Pensions Committee and an author of the health law, questioned whether Mr. Obama had the authority to unilaterally delay the employer mandate. ‘This was the law. How can they change the law?'” he asked.

How indeed?

There is no provision in the law allowing for a delay. And, as pointed out by former judge Michael McConnell in the Wall Street Journal, who compared the president to King James II, Obama cannot simply refuse to enforce laws he doesn’t like, no matter the reason.

McConnell makes two key points on the matter:

• “Article II, Section 3, of the Constitution states that the president ‘shall take Care that the Laws be faithfully executed.’ This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.” [emphasis in original]

• “The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to ‘refuse to enforce a statute he opposes for policy reasons.'”

Obviously the president’s position on the employer mandate is not constitutionally based. But his administration successfully defended his law’s constitutionality to the Supreme Court.

While delaying the employer mandate, the president did not rewrite the law to delay the “individual mandate,” which requires nearly all Americans to have Obama-approved health insurance by that same date or pay a tax penalty.

As a result, many Americans are caught in the middle. They are obligated to have Obama-approved health insurance, but their employers are not obligated to provide it, at least for another year. As a result, these Americans will be forced to purchase Obama-approved health insurance on an Obamacare-created health insurance exchange or pay the tax penalty. Either way, it’s out-of-pocket.

Judicial Watch objects to the employer mandate, the individual mandate, and the entire Obamacare law. In fact, JW filed an amicus curiae brief with the U.S. Supreme Court making the argument that the mandate to purchase health insurance is flagrantly unconstitutional. 

We also understand that, under the U.S. Constitution, the law can only be changed by legislation passed by Congress and signed by the president. President Obama evidently wants to delay at least some of the ill effects of his health care scheme until after the 2014 congressional elections. But politics do not trump the Constitution or the rule of law.

For this reason, we are seeking to mount a challenge to Obamacare based on the president’s attempts to rewrite the law. And you might be personally able to join this legal effort. 

If you are going to have to purchase Obama-approved health insurance (which would have been covered by the employer mandate) through an Obamacare-created health insurance exchange or pay a tax penalty because your employer is dropping or does not provide health insurance, you may have a claim to challenge President Obama’s unilateral rewriting of the law.

If you think your circumstances fit the bill and you would be interested in being a plaintiff in a challenge to Obama’s unconstitutional power grab, then please contact us by replying to this email address: obamacarechallenge@judicialwatch.org. And please feel free to share this email with others you think might also have a claim as described here.

President Obama has repeatedly defied the U.S. Constitution and the rule of law to pave the way for his big government agenda. This is one action we can take together to stop him. Please consider joining JW’s cause if you are eligible.