Federal Court Grants Oral Argument in Obamacare Employer Mandate Lawsuit + More!

by Tom Fitton –

It looks like Judicial Watch is finally going to get its say in court on behalf of our client, Kawa Orthodontics, in a lawsuit challenging Obamacare.

On Wednesday, the U.S. Court of Appeals for the Eleventh Circuit granted oral argument in an appeal of a lawsuit by Kawa Orthodontics, LLP, which challenges the Obama administration’s delay of the “employer mandate” provisions of Obamacare.

Until the delay, the mandate had been scheduled to go into effect on January 1, 2014. In July 2013, the administration announced that the mandate would be delayed until 2015 even though the law expressly requires it to take effect on January 1, 2014. The Obama administration subsequently delayed the mandate a second time. It is now scheduled to take effect in 2016.

(As I’ve discussed previously, this is a classic case of violating the law in order to kick the can down the road past the next election so the unpleasant consequences of Obamacare do not damage the chances of Democrats getting elected.)

Kawa Orthodontics, which has been adversely impacted by the mandate delay, sued the U.S. Department of Treasury, the Internal Revenue Service, Treasury Secretary Jack Lew, and the Commissioner of the IRS. The lawsuit was filed on October 1, 2013, in the U.S. District Court for the Southern District of Florida in West Palm Beach. It was dismissed without a hearing on standing grounds on January 13, 2014.

On February 27, 2014, the case moved to the Eleventh Circuit in Atlanta. We are now awaiting a ruling by a three-judge appellate panel.

The timing for this development comes just as U.S. House of Representatives Speaker John Boehner is calling for a House Resolution authorizing a civil suit against the Obama administration. New focus has been given to Kawa Orthodontics’ lawsuit, which is the first and most serious legal challenge to the Obama administration’s constitutional overreach in delaying the mandate.

Many prominent Americans, including members of Congress and other opinion leaders, have voiced support for this historic legal challenge:

“Obamacare is a disastrous law that’s increasing patient costs, limiting patient choices, killing jobs and outright violating the Constitution. Obamacare needs to be repealed and replaced, and I believe legal challenges to it will continue to show its flaws.” – Senator Marco Rubio (R-FL)

“It’s time the President works with Congress, not around it, to achieve realistic policy goals that help grow opportunity for hardworking Americans. They work hard and play by the rules – we need an Administration that does the same. Dr. Kawa’s suit pushing back against this administration and its overreaching agencies should be considered in the larger discussion about the constitutionality of this administration’s actions.” – Rep. Mike Fitzpatrick (PA-8)

“President Obama has consistently shown a disregard for the limits of his authority under the Constitution, especially with respect to his own signature law, Obamacare. Thankfully, orthodontist and small business owner, Dr. Larry Kawa has taken the necessary action on behalf of his patients and employees to hold the Obama administration accountable to the requirements of the Constitution and the law.” – Michael Steele, Former Republican National Committee Chairman

“While it would be best if the government overreach known as Obamacare were banned altogether, it is for better or worse, the law of the land. For President Obama and his administration to override a Congressionally passed law with a blog post is not only ridiculous, it’s illegal. The uncertainty about the law and whether or not it will be implemented has critically damaged many local businesses such as Dr. Larry Kawa and Kawa Orthodontics. Dr. Kawa has shown great courage in taking on the establishment and fighting for the rule of law. The framers believed in limited government, which is why there are limits to the president’s power. I hope that he finally gets the message.” – Richard Rahn, Senior Fellow at the Cato Institute

As a “large employer,” Kawa Orthodontics is subject to the “employer mandate.” The company spent substantial time and money in 2013 in anticipation of the mandate taking effect in 2014. It also incurred significant “opportunity costs” preparing for the mandate instead of pursuing other business opportunities.

And how much damage was done? 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 Obama administration announced its delay of the mandate after Kawa Orthodontics incurred these “anticipatory compliance costs.”

According to Kawa Orthodontics’ attorneys at Judicial Watch, 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 delay.

And Kawa Orthodontics is not alone. 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.

Here’s how our attorneys, arguing on behalf of Kawa Orthodontics, put the case into context: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.

Of course, we are very pleased that the court granted oral argument in the case. This is a great opportunity for Judicial Watch and its client to clearly articulate our arguments in court. JW has been entrusted with representing a courageous and well-respected Florida orthodontist, Dr. Larry Kawa and his practice, Kawa Orthodontics, in standing up to this unconstitutional presidential overreach. Today we moved one step closer to our goal of holding this lawless administration to account.

President Obama has repeatedly taunted the American people to sue him if they believe his actions are illegal. Well guess what Mr. President, we did. And we will now have our day in court. Once again, Congress, with plans for a lawsuit of its own over the delay of the employer mandate, is late to the table in challenging Obama administration lawlessness.

Dr. Kawa offered the following statement at the time of the court’s decision: “The amount of goodwill and support that we’ve seen from people like Senator Marco Rubio, Congressman Mike Fitzpatrick, Michael Steele, and Richard Rahn has been incredible. The administration now knows that the country is watching and the courts will be listening. No longer will Americans remain silent while President Obama tramples over the constitutional limits on executive branch authority. We are confident the court will allow us to move forward with our lawsuit so that, ultimately, the rule of law will prevail.”

“Endless Wave” of Illegals Continues to Invade Border as
Liberals Announce “Our Doors Are Open”

President Obama has created a crisis on our nation’s southern border. As I told you last week, the Marine General charged with cleaning up the mess has said this threat represents an “existential threat to our country.” This is a combat veteran who has seen and overcome the worst of the worst. If he’s sounding the alarm, we all ought to pay attention, and that includes the Commander-in-Chief.

What the country needs now, more than ever, are cool heads in Congress and sensible solutions, beginning with turning off the spigot and stopping the flow of illegals across the border. But cooler heads are not prevailing on Capitol Hill. Quite the contrary. Instead we have reckless members of Congress dumping fuel on the fire.

Breitbart.com explains:

As thousands of illegal immigrant children are crossing the U.S.-Mexico border, House Democrats pushed for more amnesty, guest-worker visas, $3.7 billion in funding, and more lawyers for illegal immigrant children during a Tuesday Twitter town hall on immigration.

Their message to illegal immigrants was, in the words of Rep. John Lewis (D-GA), “our doors are open.”

“We are all connected. We can’t just build a wall or a fence and say no more,” Lewis said. “This is America. Our doors are open.”

We know what such talk will do. Remember the Bush administration survey we uncovered more than a decade ago, proving that even the rumors of amnesty led to a flood of illegals? Well this is not mere rumor. This is now the official and open policy of the United States government: Ignore our laws. Our borders seem to no longer exist. Our doors are open.

Such sentiments used to be spoken in hushed tones and behind closed doors. Remember when “stealth amnesty” was the term. Now they are shouted from the floor of the U.S. Capitol and into microphones for the world to hear. And the world is listening.

Fox News recently described in chilling terms how this “open door” policy has been interpreted by foreign nationals who are running, marching, swimming, rafting and climbing their way across the nation’s southern border.

Life jackets of all sizes and the occasional punctured raft are strewn along the banks of the Rio Grande, just south of Mission, Texas, where a relentless onslaught of illegal immigrants eagerly surrender to beleaguered Border Patrol agents around the clock. It’s a cycle for which there is no end in sight.

“You’re going to be out here a long time,” Fernando, an El Salvadoran child, told FoxNews.com shortly after surrendering to Border Patrol authorities after midnight Saturday. “There are thousands of us.”

These “thousands” on their way are in addition to the 60,000 who have already made the trip and are spreading to points across the United States, bringing with them disease, crime, and chaos.

How bad is it?

As reported earlier by our own Corruption Chronicles blogger Irene Garcia, ABC News is now confirming that “The federal government is so overwhelmed by the current tide of migrants crossing the border it can’t provide basic medical screening to all of the children before transporting them – often by air – to longer-term holding facilities across the country.” Among the serious: swine flu, dengue fever, Ebola virus and tuberculosis.

The Obama administration’s response to this crisis has been telling. Instead of moving quickly to stem the tide of illegals, the president, and his liberal allies in Congress, have ignored border security altogether, focusing only on the care and feeding of the border-crossers.

And this week they took the effort to roll out the welcome mat to a whole new level. Gateway Pundit explains:

The Obama administration has awarded a $50 million contract to a charitable group to buy a Texas resort hotel and transform it in to a 600 bed facility for juvenile illegal aliens.

The beautiful Palm Aire resort and hotel has an indoor Olympic sized pool and an outdoor pool. Free Wi-Fi and cable TV are included in the simply decorated guest rooms.

The Palm Aire Hotel and Suites is set to be sold to Baptist Child & Family Services (BCFS) operating under a federal contract, pending local government approval, according to reports from Weslaco, Texas where the hotel is located. Weslaco is a few miles north of the Rio Grande in Hidalgo County.

(Evidently luxury accommodations are not just for the First Family anymore.)

Providing accommodations for illegals is also a contentious issue in the City of Los Angeles, California, where Mayor Gil Garcetti recently announced a large-scale campaign to house illegal alien children, earning criticism from homeless activist Ted Hayes. “It’s kind of a slap in the face to U.S. citizens,” Hayes told CBS Los Angeles. “It’s embarrassing. It’s hurtful. Because it’s like a father saying that he loves children outside of the family more than he loves his own.”

Of course, illegal alien amnesty has nothing to do with love. It’s about votes. It’s about currying favor with a growing demographic that will help win elections now and for generations to come. Even if it comes at the expense of the health and safety of American citizens. And desperate people are risking, and losing, their lives to take advantage of Obama’s lawless amnesty.

Breitbart.com reported this week on the most recent casualty of the mass migration to the U.S.-Mexican border: “The death march through Brooks County, Texas claimed the life of yet another illegal immigrant. A human skull and the decomposed skeletal remains are all that is left of a person who decided to come to this country illegally. A total of 42 bodies have been found this year in the desert-like ranch fields surrounding the town of Falfurrias.”

And even for the illegals who avoid the fate of the illegal immigrant who died in the desert, they are not necessarily destined for luxury accommodations at Club Obama. I’ve written extensively in this space about the forced labor, prostitution, physical abuse and extortion that so often accompanies human smuggling. It’s terrible, terrible business that is now openly aided and abetted by President Obama and members of Congress from both political parties.

Your Judicial Watch will continue to work to expose, investigate, and – if necessary – litigate to try to address the border crisis and protect you. My colleagues and I are focused on this issue. And it is no satisfaction that everything JW has been warning about in terms of illegal immigration lawlessness is now coming to pass. We, like you, fear for the future of this country. Obama is out of control, Congress (and many Republicans) have ignored Obama’s lawlessness, and now the American people and other innocents are suffering.

In the meantime, please keep an eye in Congress. From what I’m hearing, Republican leaders are coalescing around bills that fund more Obama lawlessness, undermine border security, further empower to the president to grant amnesty unilaterally, and do little to nothing to address the “existential” threat on our border. In addition to keeping watch on what your local and state leaders are doing to address this crisis (Obama is shipping these illegal aliens all over the country), you should immediately let your elected representatives in Congress know that what you think they should be doing to address this issue. You can reach the U.S. Capitol switchboard at 202-224-3121.

Senate Liberals Narrowly Miss on Bid
to Reverse Supreme Court Religious Freedom Victory

Senate liberals (a mix of almost all Democrats and a few Republicans) missed by a hair on Wednesday in a bid to overturn the Supreme Court’s Hobby Lobby decision, which ruled unconstitutional the Obama administration’s heavy-handed requirement that business owners provide abortion services for employees, even in violation of their constitutionally protected religious beliefs.

As reported by Politico:

A Democratic bill to reverse the Supreme Court’s recent Hobby Lobby decision narrowly failed in the Senate on Wednesday, but it sparked more contentious debate over contraception and religious freedom that both sides hope will mobilize their voters in November.

The bill in effect says a 1993 religious freedom law at the heart of the Hobby Lobby case doesn’t apply to legally required health benefits. The Supreme Court had cited the Religious Freedom Restoration Act in ruling that certain for-profit businesses can on religious grounds be exempted from the Obamacare requirement that the health plans they offer workers include FDA-approved birth control with no co-pays.

The procedural vote to take up the bill failed 56-43, four short of the 60 votes needed. Three Republicans, Susan Collins of Maine, Mark Kirk of Illinois and Lisa Murkowski of Alaska, joined the Democrats in support of the measure sponsored by Patty Murray (D-Wash).

The fact that Senate liberals came so close to overturning the Hobby Lobby decision is a good indication that the Left has been hard at work “framing” the debate. (Were you following the hysteria flying across the Twittersphere after the decision came down?) And, per usual, they’ve done it by fanning the flames of discontent with distortions about what the law states, what the Court ruled, and what the ruling means.

Let’s take them one by one.

Distortion 1: The Hobby Lobby decision is part of a “vast right wing conspiracy” to undermine the rights of women.

Fact: The Religious Freedom Restoration Act, which provided the basis for the Supreme Court ruling, was introduced by the late Senator Edward Kennedy (D-MA) and current Senator Chuck Schumer (D-NY). It passed the Democrat-controlled House by voice vote and sailed through the Democrat-controlled Senate 97-3. President Clinton, a Democrat, signed the bill into law. If you don’t like the decision, you can blame the Left, Right and Centrists as politicians from every political persuasion voted in favor of this legislation.

Distortion 2: The Supreme Court ruled that employers can deny women access to contraceptive services and healthcare.

Fact: This is simply not true. As described by Republican Senators Kelly Ayotte (R-NH) and Deb Fischer (R-NE) in an excellent op-ed they penned for The Wall Street Journal: “Contrary to the misleading rhetoric, the Hobby Lobby ruling does not take away women’s access to birth control. No employee is prohibited from purchasing any Food and Drug Administration approved drug or device, and contraception remains readily available and accessible for all women nationwide.”

“In the Hobby Lobby case, the company’s owners-the Green family-offered health-care plans that provide coverage for 16 of the 20 FDA-approved contraceptive drugs and devices, including birth-control pills, required under the Affordable Care Act.”

Distortion 3: With this ruling, employers can deny healthcare to employees by simply invoking “religious freedom” without any justification.

Fact: Justice Samuel Alito states in his majority opinion, “our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.” In other words, this decision can’t be applied willy nilly under the general principle of religious freedom. There must be a legitimate claim. In the case of the Green family, the owners of Hobby Lobby, they had a religious objection to abortion, and four of the 20 contraceptive services at issue are abortifacients. The effort to force them to provide such services, the Court ruled, represented a legitimate infringement on their religious liberties.

Distortion 4: The nation is unified in its opposition to the Hobby Lobby decision and would support an attempt by Congress to overturn it.

Fact: According to a Rasmussen poll, the American people support the Supreme Court decision by a ten-point margin. In a Huffington Post/YouGov poll the margin was slimmer at 4 points but still in favor of the decision.

The Left is shrill and vocal and expert at the art of making their unpopular opinions seem popular. But the fact remains a plurality supports the Supreme Court’s defense of religious liberties in the Hobby Lobby case. And this is the sound and reasonable position to take.

As we argued in our amicus brief filed with the High Court on behalf of Hobby Lobby, the owners of the company, any company, should not have to choose between “fidelity to [their] faith or the imposition of unimaginable fines.” The brief also reminds the Court of James Madison’s words in the Federalist Papers: “an elective despotism was not the government we fought for.”

You can expect the distortions, and this fight, to continue. According to our friends at the Becket Fund for Religious Liberty, who successfully represented the courageous Green family against President Obama’s despotism, there are many more court battles ahead. There at least 100 cases now weaving their way through the federal courts, including one from Little Sisters of the Poor:

In accordance with their faith, they uphold the unique, inviolable dignity of all human, especially those deemed weak or, to some, “worthless” in society. The federal government’s contraception and abortion mandate, however, forces the Little Sisters to provide services that destroy human life, contradicting their very mission to respect it.

The Obama administration and their fanatic allies would see these nuns and the religious freedom of millions of Americans crushed. Remember, no abortfacient or abortion mandate was passed by Congress in Obamacare. This anti-Church mandate is a creature solely of Obama’s regulators, working in league with the pro-abortion lobby.

In the meantime, we should celebrate the legal victory. A battle has been won in the defense of the First Amendment right to religious freedom. The Obama administration has been waging war on several fronts against the Christian Church. This Obama assault, through Obamacare, was without modern precedent. While girding for future battles, let’s applaud the high court’s decision to repel the administration’s overreach, which would have had Americans violate their consciences or lose their livelihoods.

Breaking IRS Scandal News!

There have been some developments in the IRS scandal. As I mentioned last week, JW beat the IRS in court. The agency will now have to explain, per a court order, what happened to missing/destroyed/concealed emails that could shed light on the origins of the agency’s attack campaign against conservative organizations.

This week, it was U.S. Rep. Jim Jordan seeking answers. Congressman Jordan in hearings held by the U.S. House Oversight and Government Reform Committee’s Subcommittee on Economic Growth, Job Creation and Regulatory Affairs.

During the proceedings, Rep. Jordan repeatedly credited Judicial Watch with exposing IRS malfeasance while questioning Justice Department officials regarding the agency’s criminal investigation into the matter.

During the hearing Justice officials confirmed that these missing emails will now be part of its widening probe. As reported by Newsmax:
The Justice Department said Wednesday that it was investigating the circumstances behind the disappearance of emails from a former senior Internal Revenue Service official, part of a broader criminal inquiry into whether the agency had targeted conservative groups seeking tax-exempt status.

As you may know, we’re suspicious of all this and don’t trust the Justice Department to investigate this in good faith. But Judicial Watch is pressuring the IRS to protect evidence through the courts. National Review Online broke the news:

“Effective immediately upon receipt of this notice, you are required to keep any hard drives and related data associated with a computer hard drive failure.”

That’s the email order that came down to IRS IT officials on Monday morning, according to a copy of the message obtained by National Review Online.

The IRS’ latest action comes in response to a lawsuit filed by the organization Judicial Watch, which filed a Freedom of Information Act request seeking the release of emails from former IRS official Lois Lerner and several other employees whose correspondence, the agency has said, may have been destroyed. In a hearing on Thursday, a federal judge ordered the IRS to explain how it lost two years’ worth of Lerner’s correspondence with employees at other federal agencies.

The Justice Department, in response to the lawsuit, “has requested IRS to issue a litigation hold notice for these offices pending resolution of the case,” the IRS’ chief information officer for user and network services, Anne Shepherd, wrote the agency’s IT employees.

Again, I just want to point out that these dramatic developments would not have occurred without Judicial Watch’s efforts – which are all due to the voluntary support of you and other patriotic Americans. And I want to congratulate our attorneys and investigators for a job well done.

Much more to come on this so stay tuned!

Tom Fitton – President

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