Lawsuit targets Obamacare changes from White House

The U.S. Supreme Court justices may be able to make a career of ruling on Obamacare, the president's signature health-care industry takeover, it seems.

A fifth case on the controversial law that orders Americans to buy a specific consumer product the government believes they need has been submitted.

The newest case was filed by Judicial Watch on behalf of Kawa Orthdontics, which alleges it was damaged because Obama refused to follow the law as written and impose an employer mandate as Congress ordered.

Judicial Watch said it has filed a petition asking the court to review the case in which Kawa alleges it lost "the value of the time and money it spent in 2013 preparing for the mandate to take effect in 2014."

That was because Obama changed the deadline written in the law.

The 11th U.S. Circuit Court of Appeals decided not to address the central question of the case – "whether the executive branch could 'ignore the clear, congressionally imposed deadline' of the ACA, also known as Obamacare – because it concluded that Kawa Ortho did not demonstrate injury sufficient to establish legal standing."

Judicial Watch, in announcing the appeal, said, the question, therefore, is whether "an entity that loses the value of the substantial time and resources it prematurely expended and the time value of the money it spent on anticipatory compliance costs is sufficiently injured to confer Article III standing."

The case is based on Kawa's expenditures of "substantial time and resources, including money spent on legal fees and other costs" because of the looming 2014 deadline for the employer mandate under Obamacare.

From the past president of the Association of American Physicians and Surgeons is available some critically important advice, "Surviving the Medical Meltdown: Your Guide to Living Through the Disaster of Obamacare."

Then Obama changed it.

The 11th Circuit ruling, however, said there weren't enough damages even to make a case, a decision that stands in conflict with precedent, Judicial Watch argued.

"In 'National Federation of Independent Businesses v. Sebelius,' the court resolved whether the individual mandate was constitutional. Although it did not address standing, by reaching a decision, it implicitly affirmed the court of appeals' analysis. In that case, the court of appeals held that private parties challenging the constitutionality of the ACA's 'individual mandate' had standing to pursue their claims based on their need to incur anticipatory compliance costs."

Judicial Watch argues for Kawa Orthodontics: "When it enacted the ACA, Congress made a deliberate policy choice to have the 'employer mandate' obligations commence on January 1, 2014. Defendants seek to replace Congress' policy choice with their own policy choice. … It is a deliberate and unequivocal policy change with very real consequences for hundreds of thousands of businesses and millions of employees across the country."

Larry Kawa, who runs the business, said: "I'm humbled by the opportunity to stand up for the Constitution. Our founders created a system of checks and balances designed so that no one branch of government would become too powerful.

"When the executive branch decided to rewrite the laws as they saw fit without the consent of Congress, they overstepped their authority, causing injury and harm to myself as a business owner. With the great help of Judicial Watch, I look forward to the opportunity to have our day in court and have justice served."

Tom Fitton, president of Judicial Watch, said, "Those who think Obama's lawlessness and his refusal to follow his own Obamacare law has no consequences are oblivious to costs of this lawlessness for American businesses, such as our client Kawa Orthodontics.

"This case is yet another instance in which a responsible and rational business has been injured by a politically motivated, unilateral power grab by the executive branch. In attempting to comply with the law, our client instead suffered significant economic harm, so that President Obama and influential special interests could avoid accountability for the law that was passed despite the clear objections of the American people."

The petition frames the question for the Supreme Court: Can the president ignore a congressional deadline?

It states: "Unlike all of the other ACA challenges submitted to the court over the past few years, Kawa Ortho does not challenge the text of the law. Nor does it challenge the enforcement of the 'employer mandate' provisions. … Instead, Kawa Ortho challenges defendants' unlawful decision to disregard statutory requirements and unilaterally delay enforcement of the law for at least two years."

Other cases before the Supreme Court have met with mixed results.

It was nearly three years ago that the court decided the penalties in Obamacare were taxes, meaning the law didn't violate the Constitution.

Then the Supreme Court ruled that government could not force certain employers to violate their faith and subsidize abortions, as Obama had wanted.

In March, the justices heard a case over whether the law makes people in all 50 states eligible for federal tax subsidies or only those who live in states that created their own health insurance marketplaces. The law says subsidies are available only through "an exchange established by the state," but defenders of the law contend the language includes any government, not just the 50 states. A ruling is expected to be announced within the next several weeks.

The justices also refused to take a case about whether the law is an illegal invasion of privacy. The argument is that its Independent Payment Advisory Board – which has been dubbed a "death panel" by critics – is unconstitutional because it would make life-and-death decisions for patients.

The case was brought by the Goldwater Institute, which has explained the case is not over.

"This case is not dead; we're simply in a holding pattern," said Christina Sandefur, a senior attorney for the group. "We will bring this challenge again once the Independent Payment Advisory Board takes action."

The 15-member board was created to set reimbursement rates for Medicare.

Goldwater reports: "In reality, it has the power to govern decisions about public and private health care, and to determine which procedures, treatments and drugs will and will not be covered by the government programs that pay for the medical treatment of more than 48 million Americans. IPAB's decisions automatically become law and cannot be challenged in court. The ACA was written so that the board cannot be repealed without an unprecedented congressional supermajority, and only during a short window in 2017.

"These features are unique to the Independent Payment Advisory Board. Never in American history has another board been created with such broad authority to make law without Congress's vote or the president's signature, and that cannot be challenged in court or repealed."

The group argued: "This consolidation of power into one unelected agency was the main aspect of the Goldwater Institute's challenge. But because the board has not yet been appointed, or made any decisions, the Ninth Circuit Court of Appeals said the case was not ripe for review at this time."