Weekly Update: Stand Up for the Constitution

March 7, 2014

JW Confronts “One-Man Congress” with Obamacare Appeal

There is no doubt Barack Obama and everyone involved in advancing the Obamacare monstrosity would love for Judicial Watch to simply go away. But you know by now that’s just not going to happen.

And that’s just what happened on February 27, when we filed an appellate brief with the U.S. Court of Appeals for the Eleventh Circuit in our Obamacare litigation on behalf of Kawa Orthodontics L.L.P., which is run by Dr. Larry Kawa.  This historic lawsuit, which names the U.S. Department of Treasury and the Internal Revenue Service as defendants, challenges the Obama administration’s unlawful and unilateral decision to delay the enactment of the “employer mandate” provision of Obamacare.

The lawsuit was originally filed on October 1, 2013, in the U.S. District Court for the Southern District of Florida. On January 13, 2014, District Court judge William P. Dimitrouleas ruled in favor of the IRS, indicating that Dr. Kawa’s business lacked “standing” to bring the lawsuit.

How important is this JW lawsuit? As the only legal challenge to the Obama administration’s delay of the Obamacare “employee mandate,” the case could have historic ramifications if the courts rule in favor of Kawa Orthodontics. And it cuts to the heart of a constitutional crisis – the Obama administration’s penchant for usurping the power of Congress and legislating from the Oval Office.

As a “large employer,” Kawa Orthodontics is subject to the “employer mandate.” And in preparation for the statutorily mandated start date of the mandate, Kawa Orthodontics spent substantial time and money to comply, incurring both anticipatory compliance costs and significant opportunity costs.  (And Dr. Kawa’s business was certainly not alone.)

However, the Obama administration unlawfully and unilaterally delayed the “employer mandate” from taking effect on January 1, 2014, until 2015, and, subsequently, until 2016. In our brief, we argue that the delay of the “employer mandate” diminished the value of the costs incurred by Kawa Orthodontics.

We further contend (getting to the issue of “standing”) 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.

Now, by way of review, the “employer mandate,” subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage to their employees. And, it 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 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 reasons are obvious, given the timing of these delays. President Obama did not want the unpleasantness of the mandate, and the anticipated political fall-out, to interfere with the effort to elect Democrats.

And the costs are significant to the businesses who have been subjected to the political whims of the president.

Kawa Orthodontics 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.” 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 whom could be affected as well.

In a December, 2013 Motion for Summary Judgment, Judicial Watch argued:

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.

As I say, this is 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.

Dr. Kawa, meanwhile, noted the simple message at the center of his legal battle.

“The Obama administration is desperate to keep us out of court and I am confident that the Eleventh Circuit will rule that the lawsuit may continue. 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,” stated Mr. Kawa.

Obama’s lawlessness continues. Just this week, the administration announced another extension of yet another illicit change to Obamacare and a new rewrite of the Obamacare law that helps Obama’s union buddies.

As Congress dithers in the face of this Obama power-grab, Judicial Watch is proud to stand up to President Obama in court for the U.S. Constitution with of our client, Dr. Kawa.

Message to Boehner on Benghazi: ‘Americans Want Facts and Justice – not Controlled Leaks.’

When it comes to the Benghazi attacks, scandal, and cover-up we’ve had plenty of lies, stonewalling, obfuscation, and selective leaks.

But what has been sorely lacking is a comprehensive congressional investigation. And that’s what we asked Rep. John Boehner to provide in a letter sent to the House Speaker on March 5, 2014, and signed by military leaders, the heads of conservative organizations and, most importantly, the family members of the Americans who were murdered.

“Through the investigative journalism of Fox News reporter Catherine Herridge, a report of the Senate Intelligence Committee, and the investigation and litigation efforts of Judicial Watch, we now know that there is compelling evidence that former Acting Central Intelligence Director Michael Morell has made false and misleading statements to Congress. This issue demands your immediate personal attention,” our coalition explained in the letter.

What sort of false and misleading statements? Here’s the mother of all whoppers as described by Herridge, who should receive huge kudos for doggedly pursuing this scandal while the mainstream media has been asleep at the wheel.

Former CIA Deputy Director Michael Morell is facing accusations from Republicans that he misled lawmakers about the Obama administration’s role in crafting the bogus storyline that a protest gone awry was to blame for the deadly Benghazi attack.

Among other discrepancies, Republicans on the Senate Intelligence Committee allege Morell insisted the talking points were sent to the White House for informational purposes, and not for their input – but emails, later released by the administration, showed otherwise.

If you will recall, early additions of the talking points noted a suspected al-Qaeda link to the attacks, a reference that was subsequently scrubbed from the talking points as the administration pushed forward with the false narrative that the attack was spontaneous. (Former UN Ambassador Susan Rice and former Secretary of State Hillary Clinton led the spin machine.)

The emails referenced by Herridge show that the Obama White House was involved in crafting this bogus narrative at the earliest stages, despite Morrell’s attempts to downplay or downright dismiss the White House’s role.  (Mr. Morell is now ensconced in a consulting firm that is close to Hillary Clinton’s political operation.)

As you know, JW has been all over the Benghazi scandal from the very first moments that the press reported the attack on the U.S. Consulate, which killed Ambassador Chris Stevens and three other American citizens. For a thorough review of our investigation, click here.

There you can access our lawsuit seeking the infamous talking points that created so much confusion and chaos, our in-depth special investigation of the Benghazi scandal conducted exclusively for Judicial Watch by former State Department Security Special Agent Raymond Fournier, our special panel discussion featuring Rep. Frank Wolf (R-VA), and the records we’ve uncovered so far, including an unclassified map that shows the U.S. had a multitude of forces in the area that could have been employed to assist the victims of the attack.

Our work has not only led to greater understanding of the events surrounding the attack, and the Obama administration’s response, but it has also prompted Congress to inch closer to transparency, although not close enough, as we explain in our letter:

We were pleased to see that our letter of January 6, 2014 may have persuaded you and your various committee chairs investigating the Benghazi attacks to make some limited efforts to promote information gathered through the uncoordinated work of the House.

But the establishment of the Internet website, “The House Republican Investigation of Benghazi” only highlights the inadequacies of House efforts to date. Most Americans, in addition to a large majority of your party’s caucus, demand a full and complete investigation of this terror attack. Mr. Morell’s statements and conduct appear to have materially contributed to confusing and misleading the Congress and the American people. Susan Rice’s latest rounds of lies about Benghazi on the February 23, 2014 edition of Meet the Press illustrate the contempt that this Administration has for your committees’ investigation to date.

Americans want facts and justice -not controlled leaks of heavily redacted interview transcripts. The latest polling shows, “Sixty-six percent of voters want Congress to keep investigating the White House’s handling of Benghazi.  That includes 50 percent of Democrats, 68 percent of lndependents and 83 percent of Republicans.”

Once again, we urge you to now create a House Select Investigative Committee on Benghazi – fully resourced with staff and subpoena powers -to conduct a thorough, coordinated investigation.

Now, for certain, JW will continue its work on Benghazi-gate. We realize there is no substitute for the work of an independent watchdog organization when it comes to these types of investigations, because our efforts are not tainted by partisan considerations. But Congress must adhere to our request for an investigation, bringing the full weight of its resources to the effort. This is an issue of national security and, frankly, the continued safety of American personnel overseas.

Stay tuned…

Senate Democrats Block Nomination of Obama Radical to Civil Rights Post

I close this week with a somewhat surprising victory against the racialists running the Obama administration. Surprising not so much in the result, but rather how it was achieved.

I’ll explain via The Washington Post:

Several Senate Democrats joined with Republicans in voting against Debo Adegbile, whose nomination was adamantly and vocally opposed by conservatives due to his participation in an appeal filed on behalf of Mumia Abu-Jamal — an internationally-known prisoner convicted of the 1981 murder of Philadelphia police officer Daniel Faulkner.

Adegbile was Obama’s choice to head the Civil Rights Division of the Holder Justice Department.

Of course, Adegbile’s prospects at confirmation were intertwined with the story of Mumia Abul-Jamal. So let’s review the facts of what took place the night Faulkner was murdered.

Early the morning of December 9, 1981, (3:50 am to be exact), Officer Daniel Faulkner stopped the car of William Cook, Abu-Jamal’s brother. Abu-Jamal, driving a taxi, happened to be parked nearby and upon witnessing the altercation involving his brother, took off across the street to confront Faulkner, shooting him in the back. Officer Faulkner did manage to fire back, wounding Abu-Jamal, who then stood over Faulkner and shot him point blank in the face, killing him instantly.

Abu-Jamal, a former member of the Black Panther Party, was found guilty and received the death sentence which was later commuted to life in prison. The “guilty” decision was “not a close call:”

“The question of Abu-Jamal’s guilt is not a close call,” according to John Fund. “Two hospital workers testified that Abu-Jamal confessed to them: ‘I shot the motherf***er, and I hope the motherf***er dies.’ His brother, William, has never testified to his brother’s innocence even though he was at the scene of the crime. Abu-Jamal himself chose not to testify in his own defense.”

Cook, I should note, has shown up at protests on behalf of his brother’s “civil rights” battle, but never in court to testify under oath.  And our Corruption Chronicles blogger Irene Garcia covered the grassroots opposition from police organizations to Adegbile:

Obama’s nominee to be Assistant Attorney General for the Civil Rights Division at the Department of Justice (DOJ), Debo Adegbile, spent more than a decade in various leadership positions—including director—at the Legal Defense and Education Fund of the National Association for the Advancement of Colored People (NAACP). During Adegbile’s leadership the NAACP volunteered its services to represent Mumia Abu-Jamal, a member of the Black Panthers who murdered a police officer (Daniel Faulkner) in Philadelphia three decades ago.

Abu-Jamal was sentenced to death by the jury that convicted him in 1982 and his supporters—including the man who could soon be an Assistant Attorney General—have long claimed that he was the victim of a racist legal system. Nevertheless, Abu-Jamal has lost multiple appeals and the U.S. Supreme Court has twice rejected his case. In 2012, under the leadership of Adegbile, the NAACP’s Legal Defense and Education Fund represented Abu-Jamal in his latest appeal to the Pennsylvania Supreme Court. The cop murderer lost that one too, but the fact remains that Adegbile continues fighting on his behalf.

Understandably, this is upsetting to hundreds of thousands of law enforcement officers represented by the National Fraternal Order of Police. In a hard-hitting letter to President Obama, the group expresses “extreme disappointment, displeasure and vehement opposition” to Adegbile’s nomination. “As word of this nomination spreads through the law enforcement community, reactions range from anger to incredulity,” the letter says, reminding that there is no disputing that Officer Faulkner was murdered by the “thug” who Adegbile continues defending.

“This nomination can be interpreted in only one way: it is a thumb in the eye of our nation’s law enforcement officers,” the letter continues. “It demonstrates a total lack of regard or empathy for those who strive to keep you and everyone else in our nation safe in your homes and neighborhoods—sometimes giving their lives in the effort.” Adegbile will certainly exacerbate the growing division and distrust between law enforcement and minority communities, the FOP claims. The group ends by telling the commander-in-chief of its hope that candidates with records of “fairness and respect to all Americans” are considered for future leadership positions in the administration.

Don’t hold your breath. It’s really not all that surprising to see a radical candidate like Adegbile nominated for this particular job. Remember the last guy (now Labor Secretary Thomas Perez) Obama picked to head the DOJ’s Civil Rights Division? He is a renowned La Raza advocate who led the DOJ’s attack on Arizona’s illegal immigration enforcement law and state Voter ID measures nationwide. Perez was also heavily embroiled in a scandal involving the DOJ’s abrupt decision to abandon its own voter intimidation lawsuit against the New Black Panther Party for Self-Defense. Judicial Watch uncovered documents that show Perez lied under oath to a commission investigating the Black Panther debacle.

Let me put the significance of Adegbile’s defeat in perspective. Every time the president fails to get an appointee approved, there are accusations of political grandstanding and/or racism coming out of the White House. This time, however, the president cannot rely on these time-tested tricks. The president was defeated by his own party because he nominated a man whose greatest claim to fame was that he once defended and, yes, made a hero out of a cop-killer.

President Obama called the defeat a “travesty” and complained that while Adegbile played by the rules “Washington used the rules against him.” No, members of Congress merely used their common sense.

It is also interesting that Harry Reid’s recent power play to restrict the use of the filibuster for presidential nominations blew up in his face with this nomination.  With a sixty vote threshold, dishonest senators could vote to end a filibuster against a radical like Adegbile, and then, because Democrats had votes to spare, vote “against” the nominee when only a bare majority vote was required.  By moving the bar down to only requiring a bare majority vote to end filibusters, senators no longer have it both ways by casting fraud votes “against” awful nominees.

Of course, we’ve seen what the president has done before when his appointees are too radical to confirm. He simply installs them in positions of power. So should we be preparing ourselves for Debo Adegbile’s new role as “Race Relations Czar”? Now that would be a travesty.

In the meantime, we will continue to expose and confront the corruption and race-based decision making that continues at the Obama/Holder Justice Department.

Until next week…