by Tom Fitton –
Judicial Watch Sues Treasury for Records about Unlawful, Unilateral Delay of “Employer Mandate”
On multiple fronts, Judicial Watch continues to confront President Obama’s abuse of office in his ignoring and rewriting the law of the land – specifically, the Obamacare law. The president 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.
As I’ve written in this space previously, we 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” which 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 the president 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 on March 24, 2014, we were forced to file a Freedom of Information Act (FOIA) lawsuit against 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, and 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 Obama administration again, unlawfully and unilaterally delayed the employer mandate, this time until 2016.
And what was the reason for these extraordinary delays? Depends on whom you ask.
The administration claimed it was delaying the mandate in order to give companies time to comply with the reporting procedures. However, a report on the delay in the 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 the president 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 the president 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 denies “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 decides to ignore a law passed by Congress and Mazur doesn’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.) And I’m not the only with doubts.
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 to get any documents we can find that shed light on the administration’s internal deliberations. And we’re expecting a fight.
The stonewall on Obamacare from the very beginning has been Nixonian. There simply is no precedent for this administration’s penchant for ignoring the law and accountability. The Treasury Department’s refusal to turn over documents about the employer mandate has the fingerprints of the Obama White House all over it.
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, primarily because of the one-year delay in penalties on employers.
And speaking of enrollment figures.
In other Obamacare related news this week, the president crowed about the number of people who have allegedly signed up for Obamacare – 7.1 million according to the president’s number crunchers. But it’s hard to find anyone buying what the president 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 (No. 1:13-cv-01855)). We are still waiting for answers. So without supporting documentation and given his history of lies and stonewalling, 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,” reported Breitbart.com, 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 the London Daily Mail summed up the reason for all of 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 Jan. 3 triple bypass procedure that saw his $400,000 in medical expenses passed between the wrong insurance companies, the Las Vegas Review-Journal reports.
The president 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 roll-out to the constant “re-imagining” of the law by the president, to fuzzy math about enrollment figures. And it will to continue, as will our pursuit of answers and justice.
Judicial Watch Exposes Benghazi Security Fiasco
Among the nagging questions left in the wake of the terrorist attack against our special mission compound in Benghazi, Libya, is whether or not more could have been done to save the lives of the four Americans who were murdered, including Ambassador Chris Stevens.
Judicial Watch already exposed the Obama administration’s lie that no military help was within striking distance by releasing an unclassified Navy map showing that the military had a multitude of forces in the region surrounding Libya at the time of the attack.
And now we learn through a JW investigation that there were serious concerns about the security detail hired to protect the Benghazi diplomatic facility. Serious enough that the firm was flagged as a “do not hire” by a key State Department security official.
On February 28, 2014 we obtained documents from the U.S. Department of State revealing that Blue Mountain Group (BMG), the security firm hired to protect the U.S. Consulate in Benghazi, had lost at least two previous private security contracts in Tripoli and was hired despite a warning from the Embassy Acting Regional Security Officer.
According to the documents, which we received in response to our February 25, 2013 FOIA lawsuit, on June 7, 2012, Tripoli Acting Security Regional Officer (ARSO) Jairo Saravia sent the following email to RSO David Oliveira (Temporary Duty Office to Benghazi at the time) and others:
“Just a quick note in regards to Blue Mountain. The company has lost several security contracts here in Tripoli, including the Corinthian Hotel and Palm City Complex. The latest information is Blue Mountain is not licensed by the GOL to provide security services in Libya. I would advise not to use their services to provide security for any of our annexes and/or offices due to the sensitivity this issue has with the current GOL ….”
A second email that same day, from RSO Greg Levin, apparently responding to the Saravia email, said that BMG did not have a licensing problem, but did not refute that it had lost several security contracts in Tripoli. In fact, additional emails between State Department personnel in Libya sent that day suggest that licensing for security firms had become an acknowledged problem, with one email stating, “We have got to get legal to change how licensing is done for contractors.”
The documents also reveal that in Benghazi in April 2012, there was almost a physical altercation between a BMG supervisor and a member of the Libyan 17th of February Martyrs Brigade, a Libyan militia that was supposed to provide security at the Benghazi compound the day of the September 11, 2012, attacks. According to an April 18, 2012, email from ARSO Teresa Crowningshield to DS Program Manager Norm Floyd:
“At 1130 hours, a verbal altercation occurred between the Libyan February 17th Martyrs Brigade team member and Mr.[REDACTED]. The team member then notified the brigade team leader of the incident, who then went to the gate to speak with [REDACTED]. At that time, a second verbal altercation occurred between the three and [REDACTED] left the compound. The team leader then came to the RSO office and reported the incident.
“The team leader stated that [REDACTED] made an inappropriate comment with reference to Gaddafi. Then when the team leader came to speak with [REDACTED] he made derogatory comments regarding the team leader’s mother. As the situation escalated to the point of a likely physical confrontation, [REDACTED] left the compound.”
So here we have a security detail with a checkered past, to say the least, openly fighting with the Libyan security detail they were supposed to train!
The role BMG played in protecting the security of the Benghazi facility first came to light shortly after the September 2012 terrorist attack when State Department spokesperson Victoria Nuland emphatically denied that State had hired any private firm to provide security at the American mission in Benghazi:
QUESTION: (Inaudible) the claim was made yesterday that a company that is a spinoff of Blackwater, in fact, proposed or contracted the United States Government for this particular kind of eventuality, and it was caught up in some sort of bureaucratic –
MS. NULAND: Completely untrue with regard to Libya. I checked that this morning. At no time did we plan to hire a private security company for Libya.
QUESTION: Toria, I just want to make sure I understood that, because I didn’t understand your first question. You said – your first answer. You said that at no time did you have contracts with private security companies in Libya?
MS. NULAND: Correct.
This exchange was one reason we decided to take a look at the Blue Mountain Group. On December 19, 2012, we filed a FOIA request with the State Department seeking, “Any and all records regarding, concerning, or related to the $387,413.68 contract awarded by the Department of State to an unidentified foreign awardee for ‘Security Guards and Patrol Services.'” When State refused to comply with the FOIA request, JW filed its February 25, 2013, lawsuit, which resulted in the documents revealing the BMG had lost previous security contracts in Libya. (JW earlier obtained the BMG contract itself – the one Nuland said did not exist.)
While JW was exposing the red flags raised by the Blue Mountain Group, acting CIA Director Mike Morell’s testimony before Congress inspired outrage from people who were on the ground in Libya during the attack. Per Fox News:
Sources on the ground in Benghazi during the 2012 terror attack are pushing back hard on former CIA acting director Mike Morell’s testimony on Capitol Hill, where he defended his role in shaping the administration’s narrative and claimed politics were not involved.
As part of Morell’s testimony on Wednesday, the former acting and deputy CIA director acknowledged that he overruled the guidance of the top CIA officer in Libya at the time. That official told Morell the attack was not an “escalation of protests,” but Morell said he had to weigh that against analysts who concluded the opposite. He ultimately went with the analysts — whose assessment later turned out to be flawed — saying the chief of station’s report was not “compelling” and was based on loose evidence.
Folks, something is rotten here.
Why on earth would Morell choose to trust the word of “analysts” over intelligence operatives in the field who had their finger on the pulse of what was happening moment by moment at the Benghazi mission?
And “loose evidence”? Was it any looser than the evidence tying the attacks to an obscure Internet video a ridiculous claim peddled by the country’s Secretary of State during a series of television interviews? That’s the narrative the Obama administration fed us. And based on what?
The fact is, any intelligence officer worth his salt wouldn’t have such a horrible error in judgment. So what conclusion are we supposed to draw about this testimony?
It certainly seems to me that Morell is covering for some political operative inside the Obama administration who made the decision to downplay the terrorist connection to these attacks because it might have disrupted the president’s re-election campaign. Or maybe he is the political operative? Morell did little this week to excuse his false information and obstruction on Benghazi. If it were any other administration, there’d be an independent criminal investigation already underway.
What a mess. A year-and-a half after the attacks and we are all still in the dark about what really happened at Benghazi. Administration officials lied about the terrorist connection to the attack. They lied about the availability of military support that could have potentially saved lives. They lied about the security firm hired to protect our personnel, which we now know had a track record of failure.
And then we have this bizarre testimony from the nation’s former top intelligence officer suggesting he simply didn’t know that it was better to trust intelligence on the ground than “analysts” sequestered in a cubicle.
No wonder we have to battle in court for the most basic information. And it certainly doesn’t help matters that Republicans in Congress have been asleep at the switch, failing to use the full investigative powers available to them to uncover the truth for the American people.
JW, meanwhile, has been all over the Benghazi attack and cover-up, filing multiple FOIA lawsuits, uncovering records no one else could recover, pushing Speaker Boehner for a serious investigation, and issuing a comprehensive report on what our investigators have found. Click here to read all about it.
A Supreme Victory for Free Speech!
So let’s close this week with some good news, shall we?
On Wednesday, the U.S. Supreme Court issued a ruling in McCutcheon v. FEC that vindicates the right to free speech by allowing American citizens to donate to as many political candidates as they so desire, while keeping in place the maximum donation that can be made to any one candidate.
Prior to the ruling, the law put an aggregate cap on direct support for federal candidates, political parties, and political action committees (PACs). These limits can effectively restrict the number of candidates an individual could support to just nine. Why not 10 candidates, asked Chief Justice Roberts, who authored the controlling majority opinion in the 5-4 decision. Responding to the concern that the limits protect against corruption, Roberts noted that:
When the Government restricts speech, the Govern¬ment bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc., 529 U. S., at 816.
Here, the Government seeks to carry that burden by arguing that the aggregate limits further the permissible objective of preventing quid pro quo corruption.
The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount. But Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cog¬nizable risk of corruption. If there is no corruption con¬cern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be re¬garded as corruptible if given $1,801, and all others corruptible if given a dime.
And as I made clear in a statement I offered to the press about the McCutcheon decision, restrictions on spending doesn’t prevent government corruption, it is government corruption:
The Supreme Court has once again vindicated the First Amendment rights of all Americans. Restrictions on political spending are a form of government corruption; they violate Americans’ individual free speech rights in a way that only benefits those self-interested politicians who are trying to shut off public discourse.
In my experience, liberals are only concerned about big money in politics when the “big money” isn’t given to them. That’s why they attack the Koch brothers but happily take money from billionaires such as George Soros. Even assuming honorable motivation for restricting campaign contributions, Chief Justice Roberts writes:
Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opposition.
(As you may recall, JW filed an amicus curiae brief in support of free speech in Citizens United v. Federal Election Commission, a decision which also vindicated the First Amendment rights of Americans.)
Too many on the Left, especially politicians such as Barack Obama and Harry Reid, simply want to limit the rights of people who may not be sympathetic to their radical political views. Thankfully the Supreme Court won’t allow it, at least so far as political contributions are concerned.
And to those who are legitimately concerned about corruption in politics, I suggest the focus be on strengthening bribery and extortion laws. The best campaign finance reform, as the McCutcheon decision suggests, would be to throw more politicians in jail for doing official favors directly in exchange for campaign contributions. You can imagine why Obama, Reid, and, frankly, more than a few Republicans wouldn’t want that!
Tom Fitton – President