A Florida orthodontist has taken his case against Barack Obama’s “I’ve got a pen” plan of rule by executive order to a federal appeals court, challenging the president’s multiple and arbitrary changes to the deadlines in the Obamacare law.
“The Obama administration is desperate to keep us out of court, and I am confident that the 11th Circuit will rule that the lawsuit may continue,” said Larry Kawa of Kawa Orthodontics.
“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,” he said.
He is represented by the Washington, D.C., watchdog Judicial Watch.
The administration has made dozens of changes to the health care law, many of which appear to be motivated by politics, particularly with the fall mid-term elections in view. The newest change was the subject of reports on Tuesday, when sources told the Hill that the White House will announce as early as this week a new directive that would allow insurers to continue offering health plans that do not meet Obamacare’s minimum requirements.
The move would relieve the pressure on Democrats who face a backlash from constituents whose health insurance policies are subject to being canceled just as the 2014 election approaches.
According to the Hill, the cancellations “would have created a firestorm for Democratic candidates in the last, crucial weeks before election day.”
“The White House is intent on protecting its allies in the Senate, where Democrats face a battle to keep control of the chamber.”
Judicial Watch President Tom Fitton called it “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,” Fitton said.
Obama, who has been regularly frustrated by opposition by the Republican majority in the U.S. House, has threatened to go it alone.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama declared in January.
“And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and held they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
The original dispute in the Kawa case was Obama’s delay by executive fiat of a deadline for employers to offer certain health plans. Kawa alleged that his company incurred significant costs to meet Obamacare’s regulations, which suddenly were postponed.
A lower court said Kawa’s burden didn’t merit damages, so he couldn’t sue.
The brief filed with the 11th Circuit contests that conclusion.
“As a ‘large employer,’ Kawa Orthodontics is subject to the ‘employer mandate,’” Judicial Watch explains. “Being a responsible employer, Kawa Orthodontics spent substantial time and money preparing to comply with the mandate. After Kawa Orthodontics incurred both anticipatory compliance costs and significant opportunity costs, the Obama administration unlawfully and unilaterally delayed the ‘employer mandate’ from taking effect on January 1, 2014, to 2015, and subsequently 2016. In its brief, Judicial Watch argues that the delay of the ‘employer mandate’ diminished the value of the costs incurred by Kawa Orthodontics.”
Judicial Watch also argues “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 group said.
The original complaint was filed Oct. 1, 2013, in the U.S. District Court for the Southern District of Florida. On. Jan. 13, 2014, Judge William Dimitrouleas sided with the IRS in the case.
While there are reasons that would permit a delay in implementation of a law, such as Congress not providing funds, they do not apply in the case, the plaintiffs argue.
“Defendants simple seek to replace Congress’ policy choice about when the ‘employer mandate’ should take effect — Jan. 1, 2014 – with their own policy choice – first, Jan. 1, 2015,and now, Jan. 1, 2016, maybe.”
The case claims Obama has been exceeding his authority by ordering, by the stroke of his pen, the requirements of the law be changed.
The “employer mandate,” which subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage – as defined by the government – is considered “a major pillar of the ACA,” Judicial Watch said.
“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 legal team said Kawa Orthodontics estimated that it could have generated approximately $1.2 million in new revenue for its practice had it not spent time and resources figuring how to comply with the “employer mandate.”
In a December 2013 Motion for Summary Judgment, Judicial Watch attorneys, arguing on behalf of Kawa Orthodontics, put the case in context, stating: “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 case counts on the fact that applying Obamacare as written, without the exemptions for those favored by the White House, is guaranteed to generate hostility toward the plan. Even labor unions have said the plan, as written, is unworkable.
The legal team fighting the case explains: “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.”