There is no doubt Barack Obama and everyone involved in advancing the Obamacare monstrosity would love for Judicial Watch to simply go away, but you know by now that’s just not going to happen.
This is precisely what they were hoping on February 27, when we filed an appellate brief with the U.S. Court of Appeals for the Eleventh Circuit in our Obamacare litigation on behalf of Kawa Orthodontics L.L.P., which is run by Dr. Larry Kawa. This historic lawsuit, which names the U.S. Department of Treasury and the Internal Revenue Service as defendants, challenges the Obama administration’s unlawful and unilateral decision to delay the enactment of the “employer mandate” provision of Obamacare.
The lawsuit was originally filed on October 1, 2013 in the U.S. District Court for the Southern District of Florida. On January 13, 2014, District Court judge William P. Dimitrouleas ruled in favor of the IRS, indicating that Dr. Kawa’s business lacked “standing” to bring the lawsuit.
How important is this JW lawsuit? As the only legal challenge to the Obama administration’s delay of the Obamacare “employee mandate,” the case could have historic ramifications if the courts rule in favor of Kawa Orthodontics. It cuts to the heart of a constitutional crisis – the Obama administration’s penchant for usurping the power of Congress and legislating from the Oval Office.
As a “large employer,” Kawa Orthodontics is subject to the “employer mandate.” In preparation for the statutorily mandated start date of the mandate, Kawa Orthodontics spent substantial time and money to comply, incurring both anticipatory compliance costs and significant opportunity costs. Moreover, Dr. Kawa’s business was certainly not alone.
However, the Obama administration unlawfully and unilaterally delayed the “employer mandate” from taking effect on January 1, 2014 until 2015, and, subsequently, until 2016. In our brief, we argue that the delay of the “employer mandate” diminished the value of the costs incurred by Kawa Orthodontics.
We further contend (getting to the issue of “standing”) that the injury is “redressable” by the court. Specifically, if the Court were to declare the delay to be unconstitutional and reinstate the effective date established by Congress, Kawa Orthodontics would regain some, if not all, of the value of the time and money it lost as a result of the unlawful and unilateral delay.
The “employer mandate” subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage to their employees. It 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. On February 10, 2014, the Obama administration again unilaterally delayed the “employer mandate,” this time until 2016.
The reasons are obvious, given the timing of these delays. President Obama did not want the unpleasantness of the mandate, and the anticipated political fall-out, to interfere with the effort to elect Democrats.
However, the costs are significant to businesses that have been subjected to the political whims of the president.
Kawa Orthodontics estimates that it could have generated approximately $1.2 million in new revenue for its practice had it not spent approximately 100 hours of time determining how best to comply with the “employer mandate.” The Agency for Health Research and Quality of the U.S. Department of Health and Human Services reported that 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.
In a December 2013 Motion for Summary Judgment, Judicial Watch argued:
This lawsuit raises a single, straightforward legal question: does the Executive Branch have 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? … 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.
This is a pivotal case in terms of reining in the Obama administration’s flagrant disdain for the separation of powers and the rule of law. President Obama can’t use his “pen” to rewrite the law as if he were a one-man Congress. This lawsuit is the most serious legal challenge to President Obama’s and his administration’s abuses of power.
Dr. Kawa, meanwhile, noted the simple message at the center of his legal battle.
“The Obama administration is desperate to keep us out of court, and I am confident that the Eleventh Circuit will rule that the lawsuit may continue. We will stop you, Mr. President – because we are Americans. For those of you who want your country back, it’s on the way – and for the IRS and this corrupt administration so are we, because Congress makes the laws,” stated Mr. Kawa.
Obama’s lawlessness continues. Just this week, the administration announced another extension of yet another illicit change to Obamacare and a new rewrite of the Obamacare law that helps Obama’s union buddies.
As Congress dithers in the face of this Obama power-grab, Judicial Watch is proud to stand up to President Obama in court for the U.S. Constitution with our client Dr. Kawa.