by Tom Fitton –
On January 13, 2013, a federal court scuttled Judicial Watch’s lawsuit on behalf of Kawa Orthodontics’ challenge to the Obama administration’s decision to delay the enactment of the so-called “employer mandate” provision of the Affordable Healthcare Act (ACA), also known as Obamacare. But we’re not going away that easily. This is too important. So we immediately filed a notice of appeal, and we will take this as far as we need to go until justice is served.
(The U.S. Department of Treasury, Secretary of Treasury Jack Lew, the Internal Revenue Service and IRS Director Daniel Werfel are named as defendants in the lawsuit, originally filed on October 1, 2013, in the U.S. District Court for the Southern District of Florida.)
Here’s the crux of our argument: President Obama’s unilateral postponement of the employer mandate from January 1, 2014, to 2015 violated the Administrative Procedures Act (APA), was “arbitrary and capricious,” and caused Kawa Orthodontics to lose “the value of its substantial efforts” in preparing for the mandate as originally scheduled.
And what did the court say in response to these arguments with its dismissal? Absolutely nothing. On January 13, 2014, U.S. District Court Judge William P. Dimitrouleas, in a brief opinion, dismissed the lawsuit on “standing” grounds.
Before we get to the background of this lawsuit and the constitutional issues at play, let me address this issue of “standing.” In order for Kawa Orthodontics to meet the “standing” threshold to bring this lawsuit, he must meet three basic requirements under Article III of the Constitution: (1) “injury in fact” (2) “a causal connection between the injury in fact and the challenged action of the defendant,” and (3) that the injury will be redressed by a favorable decision.”
Does Kawa Orthodontics meet these requirements? Judge for yourself.
According to the Judicial Watch legal filings, 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 now scheduled to take effect beginning next year.
The company 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.”
So that takes care of “injury in fact” and “a causal connection.” With respect to redressing the injury, our lawsuit seeks the original reinstatement of the original date for the mandate. If granted, Kawa Orthodontics’ considerable expenditures to prepare for the mandate will not have been wasted. The offense will have been remedied.
So we are confident that Kawa Orthodontics has standing. Now, to review how this wound up in court.
The Obamacare 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 postponed the mandate without the approval of Congress.
And this was not the first time.
The Obama administration has now unilaterally rewritten the Obamacare law at least 16 times by executive fiat. The changes include such major overhauls as the congressional opt-out, eviscerating the individual mandate, and delaying the employer mandate. The latest rewrite occurred on December 20, 2013, when the administration allowed hundreds of thousands of people who had lost their insurance due to Obamacare to sign up for bare-bones “catastrophic” plans that are expressly prohibited by the Obamacare law.
It’s very clear why President Obama has resorted to these extra-constitutional means to avoid the unpleasant consequences of Obamacare. He’s a politician. And he knows that his unpopular health care overhaul will lead to disastrous political results he’d rather delay as long as he can. The problem is the Obama administration is operating outside of the law. And businesses are suffering.
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 which could be affected as well.
You can see how the numbers can begin to add up. And on this point, 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, states that the delay of the “employer mandate” will result in an estimated loss of $10 billion (that’s “billion” with a “b”!) 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, primarily because of the one-year delay in penalties on employers.
In a December 2013 Motion for Summary Judgment, Judicial Watch attorneys, arguing on behalf of Kawa Orthodontics stated:
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.
The court did not get to these issues. Kawa Orthodontics continues its challenge to Obama’s rewrite of Obamacare because the court is so plainly wrong. If President Obama truly wants to fix Obamacare, he will have to go through Congress. He may “have a pen,” but he ought to use it to sign a repeal of his law that had been passed by Congress.
Dr. Kawa, meanwhile, puts the lawsuit in perspective: “With over 300 million people and 16 illegal changes there’s only been one lawsuit with one plaintiff that has been filed and continues to be adjudicated. The administration doesn’t want to defend its actions on the merits and is trying to prevent us from having our day in court. The administration presented no credible legal precedent for Obama’s delay of the employer mandate. This single lawsuit could do more to rein in Obama’s lawless actions than anything going in Congress right now. We expect the courts will ultimately rule in our favor and remind this president that he is not above the law.”
Obama, Biden Presidents’ Day Weekend Vacations Cost Taxpayers $295,437 According to Records Obtained by Judicial Watch
The Obama administration is expert at inventing bogus new exemptions in Freedom of Information Act (FOIA) law. There is the infamous “spiking the football” exemption (AKA as the “offending the terrorists” exemption) that I referenced last week that was used to keep the bin Laden death images secret. Unfortunately, the courts bought that one.
And then there is the embarrassment exemption. We’ve seen this one employed on too many occasions to count. Any records that might cause damage to the image of the president and his administration are held under lock and key.
That’s why Judicial Watch has had to fight so hard to get hold of the administration’s vacation travel records. Thanks to our investigations team, we’ve been extremely successful in breaking through the Obama stonewall in order to tally the cost to the American taxpayer of these personal trips. And we recently did it again.
This week JW released U.S. Secret Service records from the Department of Homeland Security detailing expenditures of $295,437.04 by President Obama, First Lady Michelle Obama, and Vice President Joe Biden during separate luxury vacations over the 2013 Presidents’ Day Weekend. A separate group of documents shows that taxpayers paid more than $1,000,000 for Michelle Obama’s controversial 2011 trip to South Africa and Botswana.
President Obama spent the Presidents’ Day Weekend (February 15-18) on a golf trip in West Palm Beach, Florida. First Lady Michelle Obama and her daughters spent the same holiday weekend on a ski trip in Aspen, Colorado. Vice President Biden and his family spent that weekend skiing in Aspen.
Once again, we had to sue for these records, filing a FOIA lawsuit on June 21, 2013, against the U.S. Secret Service. According to the billing records, here’s the bang you got for your taxpayer buck:
* Transportation and lodging costs for the President’s trip totaled $98,135.79. This includes $32,406.50 for the flights, $16,466.25 for rental cars, and $48,490 for hotel rooms.
* The vacation costs for First Lady Michelle Obama totaled $81,523.64, including $13,221.30 in flights, $3,925 in rental cars, and $64,377.34 in lodging.
* The expenses for Vice President Biden’s weekend in Aspen totaled $115,777.61, including $5,315 in flights, $92,596 in accommodations, and $17,866.61 in rental cars.
With respect to the infamous “safari” trip, even though we filed our lawsuit back on October 4, 2011, we are just now getting records detailing the full costs of the June 21-27, 2011, trip taken by Michelle Obama, her family, and her staff to South Africa and Botswana.
According to this most recent batch of records obtained from the United States Air Force, during the six-day trip the First Lady and her entourage spent $668.702.01, including hotel and lodging costs of $430,614.18. The trip ended with a private family safari at a South African game reserve.
This $668,702.01 expenditure was in addition to the $424,142 taxpayers were billed for the cost of the flight and crew, according to earlier documents obtained by Judicial Watch, jacking the total cost of the trip over $1 million.
After all of our litigating and investigating these travel records, this much is clear: The Obamas and Vice President Biden do not seem to care a whit about sticking taxpayers with the bill for their vacation travel. But they care very much about keeping these costs secret. The stonewalling over releasing these travel numbers suggests that the Obama administration is embarrassed by the personal travel of President Obama and Vice President Biden. And rightly so.
However, I’ll say it again: Embarrassment is not a valid reason to exempt documents from disclosure. In fact, quite the opposite. Often the most embarrassing documents shed light on the most egregious abuses of the public trust. And this is the very reason for FOIA law! To allow the American people to know the government’s business so that corrupt and abusive activities can be exposed and discouraged.
Stay tuned. I get the notion that the First and Second Families have more luxury travel plans in their future.
McDonnell, Christie in Hot Water
A pair of once high-rising politicians has recently experienced a precipitous fall of late. One, former Virginia Governor Bob McDonnell, was indicted for improperly accepting thousands of dollars in gifts from a supporter who sought his help. The other, the current Governor of New Jersey Chris Christie, is embroiled in a scandal that involves the alleged abuse of his office to punish his political adversaries.
First, let’s talk about the newly indicted former Virginia Governor Bob McDonnell. Per MSNBC:
Former Virginia Gov. Bob McDonnell and his wife, Maureen, were charged in federal court on Tuesday for allegedly taking tens of thousands of dollars’ worth of gifts while in office from a supporter who sought help from the state government.
McDonnell held a press conference with his wife and one of his daughters by his side on Tuesday evening, insisting he was “falsely and wrongly accused.”
During his final State of the Commonwealth address earlier this month, McDonnell – who repaid the money and returned the gifts – apologized for the “problems and pain I’ve caused this past year.” Some of the gifts allegedly included a $6,500 Rolex watch, $10,000 worth of Oscar de la Renta clothing and $15,000 for his daughter’s wedding expenses.
The “supporter” referenced in the report is Jonnie Williams, a former chief executive of the diet supplement company Star Scientific Inc.
McDonnell defended his decision to accept the gifts by saying he believed they were made out of Williams’ “personal generosity and friendship” and not in any attempt to curry favor. He knows better. When you are a public official there really is no such thing as an innocent gesture of “personal generosity” – at least so far as the public is concerned. Even the appearance of impropriety in these situations is reason enough to say “no thank you.”
However, in this case, this gesture of “personal generosity” was evidently accompanied by a gesture in turn by the former Governor, to persuade universities to study the efficacy of Star Scientific products, according to the 14-count indictment. So it’s a hard argument to buy that the Rolex watch did not come with any strings attached, even if merely implied.
Now, with respect to Governor Christie, you can check out this excellent summary by The Washington Post to get all of the details related to what is now being referred to as “Bridgegate.” But here’s the deal in a nutshell, courtesy of the Post:
Last September, the Port Authority announced a traffic study would shut down two lanes of the George Washington Bridge. Massive traffic jams ensued in Fort Lee, the town connected to New York City via the bridge. Reporting by The Wall Street Journal and the Bergen Record revealed that the traffic delays might have had a somewhat more sinister origin. Fort Lee’s mayor, Democrat Mark Sokolich, failed to endorse Christie prior to November’s gubernatorial election. Christie still won by 22 percent, but his deputy chief of staff Bridget Kelly still thought it wise to email Port Authority and tell them it was “time for some traffic problems in Fort Lee.” It’s not clear what the lane closures were payback for but judging from Kelly’s tone they were payback for something.
Christie maintained from the outset that there was nothing political about the bridge closing, and defended his staff. It was all part of the aforementioned traffic study. But the emails suggest a different and disturbing story.
(In a second emerging scandal, it is alleged that Governor Christie’s office also withheld Hurricane Sandy relief from the City of Hoboken for political reasons. Hoboken is a heavily Democratic district.)
Now, does closing a bridge and creating a traffic jam rise to the level of, say, using the Internal Revenue Service to kill off the Tea Party for political payback (as the evidence shows the Obama administration has done)?
And in the case of McDonnell, does accepting a Rolex watch, allegedly in exchange for urging a university study, rise to the same level of, say, the extortion and favors for donors in Obama’s multi-billion dollar Solyndra and green energy scandals.
Not even in the same zip code.
And the fact that the corrupt Obama Justice Department indicted McDonnell and his wife – and is pursuing Christie like a bird dog – does not inspire confidence in the fair administration of justice. Where are the IRS indictments? Fast and Furious? Voter fraud?
Both Christie and McDonnell have been considered political stars on the rise, suitable candidates to one day occupy the White House, perhaps as soon as 2016. Voters will now wonder if they cannot be trusted with the responsibility of power in the Governor’s mansion – and this is still a big “if” as these investigations are ongoing – what happens should they get to the Oval Office?
Look no further than our current presidential administration for answers to that question. The Obama White House has embraced “The Chicago Way” that characterized President Obama’s rise to power and jacked it up with steroids, putting our country, our Constitution and our way of life at risk.
Tom Fitton – President