Bob SparksA Boca Raton orthodontist is asking a court to clarify whether the president can decide to enforce part of Obamacare but not other provisions of it.
Dr. Larry Kawa is seeking an injunction in federal court against Obamacare on the grounds the Obama administration exceeded its constitutional authority with the law’s implementation.
Specifically, Kawa contends the president and his administration lack the authority to grant a waiver of the employer mandate while keeping the individual mandate intact. Despite his own business earning a reprieve, Kawa seeks a similar delay for everyone else.
“I am willing to abide by the law,” Kawa told those gathered at the National Press Club in Washington, D.C. last week. “What I want is for the administration to disclose the authority under which the employer mandate can be waived.”
The conservative, non-partisan Judicial Watch organization (which also sued the George W. Bush administration in 2003), supports Kawa. Judicial Watch President Tom Fitton contends that Obamacare “can only be changed by legislation passed by Congress and signed by the President.”
Simply put, this lawsuit claims the president cannot arbitrarily pick those who will, or will not, be under the provisions of the law. Whether one supports Obamacare or not, this should give some pause to those who easily dismiss the recent efforts to defund or delay implementation. They state, accurately, that Obamacare is “the law of the land,” perhaps adding a “get over it” for good measure.
The question is, can the president or anyone in the executive branch waive parts of a law? Kawa contends the chief executive has no option other than to carry out the “law of the land.”
Therefore, Obama must execute all provisions of Obamacare and the tax code under mandated timetables. There is no room to enforce the provisions you wish to enforce (individual mandate) while not enforcing others (employer mandate).
Obama has given countless waivers, with still more seeking, or demanding, his blessing as well as that of Harry Reid and Nancy Pelosi. For those who have not read the full letter from union leaders and uber-Obama supporters James Hoffa (Teamsters), Joseph Hansen (United Food and Commercial Workers) and Donald “D” Taylor (UNITE-HERE), you can do so here: http://tinyurl.com/qe8oqvf
Their concerns are entirely understandable.
The Republican strategy of holding out for some sort of negotiation prior to the partial government shutdown was, and continues to be, fodder for the pundits and cable networks. Defunding Obamacare was never going to work, but last week House Republicans passed a funding bill that delayed implementation of the individual mandate by one year.
The Senate, of course, rejected this, but this tactic brings into focus just who holds the authority to change the law. As unlikely as reaching any negotiated agreement might be, the lawsuit argues that the sole authority rests with Congress, who placed nine specific exemptions into the law.
Section 1513(d) of the Internal Revenue Code, added with the passage of Obamacare, states the requirements “shall apply to months beginning after December 31, 2013.” Altering this provision was not one of the nine exemptions approved by the Democratic-controlled Congress.
This is the IRS we are talking about. “Shall” means “shall,” not “may apply” (unless it involves conservative groups). We should be interested in hearing the arguments from smart lawyers, not Jay Carney, as to how Obama or anyone in his administration can unilaterally ignore a statute and the tax code.
Those who do not care, or actually support the president’s actions, should imagine a President Jeb Bush ignoring tax code provisions covering conservative groups simply because he feels like it. Blistering editorials and lawsuits would follow.
Kawa should not expect an injunction stopping or having any near-term effect on Obamacare. It is more likely the law’s foundation will collapse under its own weight.
But if the good doctor is successful, the authority of future presidents will be more clearly codified. Depending on who is in office down the road, his or her opponents should find some comfort there.
