Judicial Watch Update: Filing on behalf of corporations having spent money preparing for the 2014 employer mandate, a mandate Obama arbitrarily canceled at a huge cost to corporations prepared to comply.

Obamacare Lawlessness to the Supreme Court?

This is where we are in Obama's America. Even when you play by the rules as they are set by the current regime, you still lose out financially and legally. Just ask Kawa Orthodontics, which invested time and resources to comply with the employer mandate as it was written into President Obama's Patient Protection and Affordable Care Act (ACA). That's the federal law commonly known as Obamacare. The key provision here declares that businesses with 50 or more employees are considered "large employers,"  and once an employer reaches or surpasses the 50-employee mark they must provide "affordable, minimum essential" health insurance coverage to their employees and their employees' dependents. In addition, "large employers" have annual reporting obligations under the ACA. So, in 2013, in anticipation of the employer mandate going into effect, Kawa Orthodontics put up its own money to comply with the mandate, causing it, and who know how many other businesses, to lose some, if not all, of the value of its time money that could have been used for other, productive purposes. That was before the administration decided to ignore the law and delay implementation of the mandate.

Your JW is having none of it. That's why on May 14, 2015, we filed a petition for a writ of certiorari in the U.S. Supreme Court on behalf of Kawa Orthodontics, a Florida business that alleges that the Obama administration's 2013 unilateral delay of the ACA's employer mandate, without approval from Congress, caused Kawa to lose "the value of the time and money it spent in 2013 preparing for the mandate to take effect in 2014," and thereby suffer significant economic harm (Kawa Orthodontics, LLP v. Secretary, U.S. Department of the Treasury, et al. (No. 14-10296). Kawa Orthodontics is owned by Dr. Larry Kawa.

In December 2014, the U.S. Court of Appeals for the Eleventh Circuit ruled that it would not address the central question of Kawa Ortho's legal challenge - whether the executive branch could "ignore the clear, congressionally-imposed deadline" of the ACA because it concluded that Kawa Orthodontics did  not demonstrate injury sufficient to establish legal standing. The Eleventh Circuit is wrong because it's clear that Kawa Orthodontics incurred an injury traceable to the defendants. That's what we argue in our petition:

Delay diminishes the time value of money...Kawa Ortho plainly alleged that because of the delay, it lost some, if not all, of the value of the substantial time and resources it expended at least two years early. It lost the time value of the money it spent on anticipatory compliance costs...Contrary to the panel's ruling, Kawa Ortho has standing. It was injured by Defendants' delay of the enforcement of the 'employer mandate' provisions of the ACA. Had Defendants not delayed enforcement, Kawa Ortho's spending would not have been premature.

Also, the Eleventh Circuit's ruling conflicts with previous Supreme Court precedent:

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.

Additionally, the Eleventh Circuit's ruling conflicts with the jurisprudence of other circuit courts:

Like this Court, other courts of appeals have concluded that incurring anticipatory compliance costs is a sufficient injury to confer Article III standing. In Liberty University v. Sebelius, the U.S. Court of Appeals for the Fourth Circuit held that the plaintiff-employer in that case, Liberty University, had standing to challenge the "employer mandate" because of the anticipatory compliance costs it had to incur in order to comply with the mandate...In Association of Private Sector Colleges & Universities. v. Duncan, the U.S. Court of Appeals for the District of Columbia Circuit concluded that the plaintiffs were sufficiently injured to confer standing because they faced increased compliance costs...Similarly, the Second and Sixth Circuits have held that plaintiffs incurring compliance costs have standing.

Those who think Obama's lawlessness and his refusal to follow his own Obamacare law have 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 passed despite the clear objections of the American people. The idea that the courts would ignore precedent and, for non-legal reasons, shut down challenges to this lawlessness is fundamentally unjust. 

Dr. Kawa is pleased for our help and wants justice:
 

"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.
 

It is no surprise that the Obama administration doesn't want Kawa Orthodontics to have its day in court, but the Supreme Court should uphold the rule of law.