A lawsuit has been filed against the U.S. Treasury Department because agency officials have refused to provide records related to the arbitrary delay in Obamacare’s “employer mandate,” which was to have required employers to provide certain levels of health care coverage to workers or be penalized.
The federal law imposes a Jan. 1 starting date for the mandate. But the White House, without going through Congress, moved the date to 2016.
When Judicial Watch, a Washington watchdog organization, asked for information about the change, the Treasury Department “acknowledged” that it received the request in November 2013.
But since then, according to the lawsuit, nothing has happened.
Judicial Watch’s complaint says the Treasury Department “was required to determine whether to comply with plaintiff’s request within 20 days, excepting Saturdays, Sundays, and legal public holidays,” the legal action explains.
The agency “also was required to notify plaintiff immediately of the determination, the reasons therefore, and the right to appeal any adverse determination to the head of the agency.”
But as of the date of the complaint, the Treasury Department “has failed to make a determination about whether it will comply with plaintiff’s request, notify plaintiff of any determination, or notify plaintiff of its right to appeal any adverse determination to the head of the agency. Nor has defendant produced any records responsive to the request.”
Judicial Watch asked for a court order for the government to search its records for relevant information and produce it.
It was in a blog post by Assistant Treasury Secretary for Tax Policy Mark Mazur that the Obama administration said on July 2, 2013, it would “unilaterally delay” the employer mandate part of Obamacare.
“The administration claimed it was delaying the mandate in order to give companies time to comply with the reporting procedures. A report on the delay in the Bloomberg news at the time, however, suggested that ‘and the delay potentially shields Democratic candidates from a backlash generated by the additional regulations on employers,’” Judicial Watch said.
The employer mandate first was put off until 2015, and on Feb. 20 it was delayed again, to 2016.
Judicial Watch noted that Mazur told Congress he denies “recollection” of whether the White House, the Treasury or the IRS asked “into the legal authority of the ‘employer mandate’ delays,” which amounted to a change of the Obamacare law adopted by Democrats in Congress.
“The stonewall on Obamacare is Nixonian,” said Judicial Watch President Tom Fitton. “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.”
Judicial Watch also has represented a Florida orthodontist in a lawsuit over the delay. The latest move takes that case to the appellate court level.
“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.
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.
Tom Fitton called the Kawa dispute “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.
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.
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.”