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Appeal Filed in Lawsuit Challenging Obama Delay of Obamacare Employer Mandate

 

Judicial Watch Appeals Decision against Kawa Orthodontics’ Challenge to Obama’s Rewrite of Health Care Law

 

(Washington, DC) Judicial Watch announced today that it has filed a notice of appeal with the U.S. Court of Appeals for the Eleventh Circuit to appeal a lower court decision in litigation on behalf of Kawa Orthodontics against the U.S. Department of Treasury, Secretary of Treasury Jack Lew, the Internal Revenue Service and IRS Director Daniel Werfel challenging the Obama administration’s decision to delay the enactment of the so-called “employer mandate” provision of the Affordable Healthcare Act (ACA), also known as Obamacare. (Kawa Orthodontics, LLP vs. Jack Lew, et al. (No. 9:13-cv-80990))

 

In the Kawa lawsuit, filed on October 1, 2013, in the U.S. District Court for the Southern District of Florida, Judicial Watch argued that the unilateral postponement of the employer mandate from January 1, 2014, to 2015 violated the Administrative Procedures Act (APA), was “arbitrary and capricious,” and had caused Kawa Orthodontics to lose “the value of its substantial efforts” in preparing for the mandate as originally scheduled.  But on January 13, 2014, U.S. District Court Judge William P. Dimitrouleas, in a brief opinion, dismissed the lawsuit on “standing” grounds.

 

The Obamacare employer mandate, which subjects certain large employers to tax penalties if they do not offer “affordable, minimum essential” health insurance coverage to their employees, 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 postponed the mandate without the approval of Congress.

 

The Obama administration has now unilaterally rewritten the Obamacare law at least 16 times by executive fiat. The changes include such major overhauls as the congressional opt-out, eviscerating the individual mandate, and delaying the employer mandate. The latest rewrite occurred on December 20, 2013, when the administration allowed hundreds of thousands of people who had lost their insurance due to Obamacare to sign up for bare-bones “catastrophic” plans that are expressly prohibited by the Obamacare law.

 

According to the Judicial Watch legal filings, the unlawful delay of the “employer mandate” has caused Kawa Orthodontics “to lose the substantial time and resources it expended and the significant opportunity costs it incurred in anticipation of” the controversial provision now scheduled to take effect beginning next year. The company 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 which could be affected as well.

 

A July 30, 2013, letter from the Director of the Congressional Budget Office to the Chairman of the Committee on the Budget, U.S. House of Representatives states that the delay of the “employer mandate” will result in an estimated loss of $10 billion in penalty payments by employers and approximately 1 million fewer people are expected to be enrolled in employment-based coverage in 2014 than the number previously projected, primarily because of the one-year delay in penalties on employers.

 

In a December 2013 Motion for Summary Judgment, Judicial Watch attorneys, arguing on behalf of Kawa Orthodontics stated:

 

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.

 

“Kawa Orthodontics continues its challenge to Obama’s rewrite of Obamacare because the court is so plainly wrong,” said Judicial Watch President Tom Fitton. “If President Obama truly wants to fix Obamacare, he will have to go through Congress.  He may ‘have a pen,’ but he ought to use it to sign a repeal of his law that had been passed by Congress.”

 

With over 300 million people and 16 illegal changes there’s only been one lawsuit with one plaintiff that has been filed and continues to be adjudicated. The administration doesn’t want to defend its actions on the merits and is trying to prevent us from having our day in court,” stated Dr. Larry Kawa, owner of Kawa Orthodontics, LLP. “The administration presented no credible legal precedent for Obama’s delay of the employer mandate. This single lawsuit could do more to rein in Obama’s lawless actions than anything going in Congress right now. We expect the courts will ultimately rule in our favor and remind this president that he is not above the law.”

 

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 State Records Show Insurance Company Cancellation Notices Specifically Cite ACA Requirements as Central Factor in Decision      

(Washington, DC) – Judicial Watch today released state records revealing high numbers of policy cancellations as a direct result of requirements of the Affordable Care Act (ACA), also known as Obamacare. Statements in the records, which include filings by health insurance companies with state regulators, directly contradict claims by the Obama administration and its allies that Obamacare was not responsible for Americans losing health insurance coverage. These new records were obtained as part of a nationwide Judicial Watch investigation to assess the damage wrought by Obamacare to the insurance marketplace.

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The state records came in response to Judicial Watch public record requests sent to each state’s insurance division, seeking the following:

The number of group and non-group comprehensive (major medical) health insurance policies for which the [STATE INSURANCE DIVISION] has received notice or report of the carrier canceling or non-renewing, or intending to cancel or non-renew, such policies, and for which the coverage termination date is after June 3, 2013, along with the number of individuals covered by such policies as of the policy termination dates.

According to those states that have responded to date, hundreds of thousands of formerly insured individuals have had their insurance policies cancelled or non-renewed due to Obamacare mandates. Contradicting claims by the White House and leading congressional Democrats, the records obtained by Judicial Watch reveal that many insurance carriers specifically cite the new requirements of the ACA as a central factor in their decision, and even inform their policyholders as much.  Typical of such notifications were the following from Oregon, where at least 145,000 individuals will lose health insurance coverage:

  • New York Life Insurance Company informed Oregon’s Insurance Division that it was discontinuing a group health insurance plan offered to an association and provided a sample letter to policyholders, notifying them of the cancellation, with the following language:

“The decision to exit the medical care marketplace was not an easy one but the evolving market conditions in the health insurance industry under Health Care Reform laws and regulations which are named Patient Protection and Affordable Care Act (‘PPACA’) prevent us from continuing to offer competitive medical insurance for association plans such as yours. Please do not hesitate to contact me if you have any questions regarding the actions described in this letter.”

  • Another health insurance provider in Oregon, Moda Health Plan, informed the state that it was exiting the individual health insurance market there, and provided a sample letter to policyholders that contained this language:

“We’re happy you chose Moda Health, and we want you to stick with us as healthcare laws change. As part of the Affordable Care Act implementation in Oregon, all of our individual and family health plans will be discontinued. That means you’ll have to enroll in a new plan. But don’t worry! We have some great choices.”

  • Providence Health Plan notified the Oregon Insurance Division that it was discontinuing its portability health insurance plans, and provided a sample letter to policyholders containing this wording:

“The first thing you need to know is that, due to changes related to the Affordable Care Act, or ACA, all portability plans, including your existing plan, will be discontinued after Dec. 31, 2013 and, therefore, you will need to choose new health plan coverage.”

In addition to the records from Oregon, Judicial Watch has received the following cancellation information from six other states to date:

  • Connecticut: At least 26,451 polices will be cancelled in 2013 and 23,504 in 2014. Those will leave 41,169 individuals in 2013 and 38,601 in 2014 with cancelled health care coverage.
  • Pennsylvania: Pennsylvania insurance department officials reported that 250,000 Pennsylvanians are losing their coverage.
  • Arkansas: With five out of nine companies providing the number of polices, individuals covered, or both; the totals are 62 policies cancelled affecting at least 537 individuals. Chesapeake Life Insurance, Independence American Insurance Company, Madison National Life Insurance Company, New York Life, and Standard Security Life Insurance Company all state that their decision was prompted by Obamacare.
  • Georgia: While not all companies specified the number of individuals affected, records reveal that Obamacare mandates will result in 727 polices being cancelled, with at least 1,006 individuals losing their coverage.
  • Delaware: Emails between the Delaware Department of Insurance and companies detailing the number of polices and individuals covered reveal that, while not all companies specified individual coverage, the total number of polices listed is 4,599, with at least 9,743 individuals losing health care coverage.
  • North Dakota: According to North Dakota insurance department officials, 36,875 individuals are losing coverage in that state.

As additional information from other states becomes available, Judicial Watch will provide it on an ongoing basis.

The massive cancellations are in direct contradiction to statements by President Obama and congressional leaders dating back to the introduction of the health care act. As early as August 11, 2009, Obama assured a New Hampshire town hall meeting, “If you like your health care plan, you can keep your health care plan.” According to Breitbart.com, Obama repeated the statement at least 23 times in the ensuing years. Responding to questions on a November 17, 2013, edition of NBC’s “Meet the Press,” former House Speaker Nancy Pelosi (D-CA) told the interviewer, “The law does not demand that all of these cancellations go out.” It is estimated that more than 4.8 million Americans have received health insurance cancellations to date because of the Obamacare mandates.

Despite these reports, White House adviser Valerie Jarrett tweeted on October 28, “FACT: Nothing in #Obamacare forces people out of their health plans.”

“The entire Obamacare fraud relies on lies,” said Judicial Watch President Tom Fitton. “According to requirements the administration had written into the law from the very beginning, the Obama administration knew that 40 to 67 percent of customers will not be able to keep their policies. The information Judicial Watch is gathering state-by-state bears that out.  These snapshots of information show that Obamacare is causing a national health insurance crisis that demands immediate action.”

 “Defendants’ delay of the mandate violates the Administration Procedures Act. It exceeds Defendants’ statutory jurisdiction, authority, and limitations, is contrary to constitutional right, power, or privilege, and is otherwise not in accordance with law.” – Kawa Orthodontics v. Jack Lew, Motion for Summary Judgment

(Washington, DC) – Judicial Watch today announced that on December 13, 2013, it filed a motion for summary judgment in its litigation on behalf of Dr. Larry Kawa of Kawa Orthodontics against the U.S. Department of Treasury, Secretary of Treasury Jack Lew, the Internal Revenue Service and IRS Acting Director Daniel Werfel challenging the Obama administration’s decision to delay the enactment of the so-called “employer mandate” provision of the Affordable Healthcare Act (ACA), also known as Obamacare.  The lawsuit is pending in U.S. District Court in the Southern District of Florida (Kawa Orthodontics, LLP vs. Jack Lew, et al (No. 9:13-cv-80990)).

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Judicial Watch attorneys, on behalf of Dr. Kawa, state:

This lawsuit raises a single, straightforward legal question:  does the Executive Branch have the 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.   Rejecting a date enacted into law by Congress and picking a new date more to the Executive Branch’s liking is the epitome of arbitrary and capricious agency action.  The Court should reject Defendants’ lawlessness and restore the rule of law to the Executive Branch’s implementation of the ACA.  It should declare Defendants’ postponement of the “employer mandate” to be unlawful, set aside Defendants’ unlawful agency action, and reinstate the date established by Congress.  The Court also should enjoin any further unauthorized delay of the mandate’s effective date.

The employer mandate, which subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage to their employees, 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.

According to the opposition to the motion to dismiss also filed on December 13, 2013, the unlawful delay of the “employer mandate” has caused Kawa Orthodontics “to lose the substantial time and resources it expended and the significant opportunity costs it incurred in anticipation of” the controversial provision taking effect beginning next year. According to the Agency for Health Research and Quality of the U.S. Department of Health and Human Services, 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.

“Dr. Kawa is asking the court to order the Obama administration to obey its signature Obamacare law.  President Obama’s decision to rewrite Obamacare has harmed and continues to harm Dr. Kawa’s business,” stated Judicial Watch President Tom Fitton. “Simply put, the president’s unconstitutional power grab should be stopped by the courts as quickly as possible.”

“I am fed up with Washington, DC dictating our futures and playing politics with the law of the land. This is just more example of DC’s career politicians thinking more about the next election than the next generation,” said Dr. Larry Kawa of Kawa Orthodontics. “President Obama isn’t above the law.”

Dr. Kawa, a graduate of NYU School of Dentistry, has been a local business owner and community leader for over 20 years. He is on the board of directors for both PROPEL, a nonprofit foundation for underprivileged youth, and the Lynn University College of Business.

“I work hard so that I can give back to my community. I help low-income youth by providing them free braces, and even sponsor Little League baseball. What is sad is that the administration’s blatant disregard for the law hurts more than inside the Beltway, it hurts all over the homeland,” stated Dr. Kawa. “Transparency and rule of law shouldn’t just be terms in government class textbooks, they should be principles that are followed in government offices.”

Additional filings: request for judicial notice; request for oral argument; and statement of material facts.

December 6, 2013

Judicial Watch Sues Obama HHS to Obtain Early “Obamacare” Enrollment Records
Judicial Watch and AEF File High Court Brief in Support of Challenge to Obama NLRB Recess Appointments
It’s About Time! Congressional Hearing on Obama Lawlessness

 

Judicial Watch Sues Obama HHS to Obtain Early “Obamacare” Enrollment Records

From the same presidential administration that brought you the “if you like your health care plan, you can keep it” lie comes some new disingenuous “happy talk” regarding the numbers of people signing up for Obamacare. The country is experiencing a surge of interest, says the White House, a claim too often parroted by a lapdog liberal media.

But don’t believe the latest from the Obama administration. The website is not “fixed.”  In fact, you cannot reliably obtain health insurance on healthcare.gov.  The New York Times, no friend of conservatives, reports:

The problem is that the systems that are supposed to deliver consumer information to insurers still have not been fixed. And with coverage for many people scheduled to begin in just 30 days, insurers are worried the repairs may not be completed in time.

“Until the enrollment process is working from end to end, many consumers will not  able to enroll in coverage,” said Karen M. Ignagni, president of America’s Health Insurance Plans, a trade group.

So if you think you “enrolled” in Obamacare, you could be in for a crisis when you go to the doctor or have a medical emergency and you find out that you have no health insurance coverage!

Of course, the Obama administration has been engaging in fraud from the very beginning – first refusing to release any Obamacare enrollee numbers during the website’s train-wreck of a rollout, and then reportedly fiddling with the definition of “enrollee” to boost their numbers.

And this is why Judicial Watch lawyers went to court – to get the real enrollment numbers from the critical period of the Obamacare launch. On November 25, 2013, we filed a Freedom of Information Act (FOIA) lawsuit against the Department of Health and Human Services (HHS) seeking this data.

Per usual, we first asked for the information by filing a FOIA request, but were forced to go to court after HHS failed to respond as the law requires. Here’s what we’re after: “Any and all records concerning, regarding, or related to the number of individuals that purchased health insurance through healthcare.gov between October 1, 2013, and October 4, 2013.”

As you will recall, the Healthcare.gov website, officially launched on Tuesday, October 1, immediately encountered substantial problems typical of those reported by the Chicago Tribune:

Consumers seeking more information on their new options under the Affordable Care Act were met with long delays, error messages and a largely non-working federal insurance exchange and call center Tuesday morning.

Pressed for an explanation in a conference call with reporters on October 1, Marilyn Tavenner, head of the HHS Centers for Medicare and Medicaid Services, refused to disclose the number of people who had purchased insurance through the site saying, “We have just decided not to release that yet.”

Why? Obviously, in an age of instant access to data, the Obama administration knew right away that the numbers were embarrassingly low.  So rather than be transparent, the Obama gang stonewalled to give themselves more time to cook the books on enrollee data.

When the Obama administration finally began releasing its version of the enrollee numbers in November, many were skeptical of the numbers. In an article entitled, “Who Counts as an Obamacare Enrollee – the Administration Settles on a Definition,” the Washington Post revealed that the Obama administration had abandoned the conventional definition of a health plan enrollee, in an obvious attempt to inflate its figures.

“Health insurance plans only count subscribers as enrolled in a health plan once they’ve submitted a payment,” the Post reported. “That is when the carrier sends out a member card and begins paying doctor bills. When the Obama administration releases health law enrollment figures later this week, though, it will use a more expansive definition. It will count people who have purchased a plan as well as those who have a plan sitting in their online shopping cart but have not yet paid.”

Significantly, the HHS figures did not break down enrollment numbers by age. The administration had announced that its goal is to sign up 2.7 million people between the ages of 18 and 35, in an apparent attempt to help offset the risk of insurance pools consisting primarily of older, more sickly people, who traditionally drive up health care coverage costs. According to the website, Governing.com, “Officials said demographic information will be included in future releases but didn’t specify when.”

Without the complete HHS records, therefore, it remains difficult to confirm the accuracy of both the Obamacare visitor and enrollment figures. Complete raw figures are necessary to fully determine such pertinent information as the cost of premiums, the amount of subsidies given to those enrolled, demographics of those enrolled, whether an individual’s enrollment was based on the mandate, and whether the number of enrollees is even a helpful statistic due to website glitches.

Hence, our FOIA request and subsequent November 25 lawsuit.

Let me be blunt. We think the Obama administration is telling more lies about these Obamacare enrollment numbers. And sure enough, the administration refuses to turn over one document to us about these basic numbers concerning the Healthcare.gov website. The fact that we must now go to federal court to get simple answers about how many people signed up for Obamacare shows that this administration has utter contempt for the people’s right to know.

 

Judicial Watch and AEF File High Court Brief in Support of Challenge to Obama NLRB Recess Appointments

From the moment he took his oath of office, President Obama realized something very important with respect to imposing his agenda: Personnel is policy. If he was going to “fundamentally transform” America, as he promised, he was going to need to surround himself with the most radically leftwing allies he could find.

Of course, when it comes to appointing high level officials with great power and responsibility, the Constitution has a process designed to make certain that the U.S. Senate can act as a check on the Executive Branch by requiring Senate confirmation for these powerful government positions.

But Obama knows full well his radical friends did not have a shot of making it through the Senate vetting process. So he simply ignored the law and the U.S. Constitution and appointed them without bothering to wait for Senate approval.

Case in point: The unconstitutional “recess appointments” used to install three individuals to the National Labor Relations Board (NLRB).

The U.S. Supreme Court agreed to review a U.S. Court of Appeals for the District of Columbia ruling in the case of National Labor Relations Board v. Noel Canning that held unconstitutional President Obama’s January 4, 2012, recess appointments of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to the National Labor Relations Board.

The Appeals Court held that the NLRB lacked a quorum to decide an unfair labor practice case because two of the three members on the board panel deciding the case (Block and Flynn) had received recess appointments in violation of the Constitution’s Recess Appointment Clause.

Although the Recess Appointments Clause allows a president to fill vacancies occurring while Congress is in recess, the Senate met in pro forma meetings every three business days. The Appeals Court, therefore, determined that the Senate was not in recess on the days the Senate did not meet because for the purpose of the Recess Appointments Clause “recess” is defined as the time between, rather than within, sessions of Congress.

Though previous presidents have made intrasession recess appointments “if they are of substantial length,” the Obama administration was the first to make such appointments during pro forma sessions of the Senate.

So the Senate says it was not in recess. The appellate court says the Senate was not in recess. And the president says he’ll decide when the Senate is in recess or not. Talk about arrogant defiance of the law.

JW has been critical of these appointments from the get-go (as we have of the many unaccountable czars installed by the president). And on November 25, Judicial Watch officially registered its objections once again, by jointly filing an amici curiae brief with the United States Supreme Court with our friends, the Allied Educational Fund (AEF). Our brief supports the U.S. Court of Appeals decision that the Obama NLRB appointments of January 2012 violated the Constitution’s Recess Appointments Clause.

The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.”

Stating that “The Senate alone can determine when it will hold session in conformity with its obligations and delegated powers by the Constitution,” here’s what the Judicial Watch/AEF amici brief specifically argues:

I.      The constitutional text is clear and consistent with the Framers’ intent that recess appointments are restricted to the recess between Senate sessions.

The Court [of Appeals] correctly pointed to the significant distinction of the Framers’ use of “the Recess,” rather than “a recess.”  “Then, as now, the word ‘the’ was and is a definite article…’noting a particular thing…’”  “As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’”

II.    The Senate determines its own rules and procedures.

The President’s supposed Recess appointments are unconstitutional because the Senate was in session at the time they were made … On December 17, 2011, the Senate decided unanimously to convene every three days from December 17, 2011, to January 20, 2012, including on, but not limited to, January 3, 2012, and January 6, 2012… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.

III.  The inconsistent application of recess appointments is irrelevant to the interpretation of the recess appointment clause.

[T]he Board cannot deny the dilemma presented by the inconsistent interpretations of prior Presidents, nor can it deny the lack of such temporary appointments for at least the first eighty (80) years following the Constitution’s ratification … In fact, the President had taken the same position when then Solicitor Elena Kagan’s letter was filed with the Supreme Court on behalf of Respondent in New Process Steel, L.P. v. NLRB stating that “the Senate may act to foreclose the [recess appointment] option by declining to recess” and convening pro forma sessions every three days…The constitutional interpretation of the validity of Recess appointments cannot be based on the inconsistent past intra-session appointments politically motivated by one side of the aisle or another.”

Clearly these Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head. Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority. And Congress is finally taking notice…

 

It’s About Time! Congressional Hearing on Obama Lawlessness

As we have been pointing out for years, President Obama has egregiously overstepped his constitutional authority on too many occasions to count. He either thinks that constitutional limits on his authority are of no consequence or, in the case of making new laws through fiat, Obama thinks he is a “one-man Congress.”

How bad is it? Even former liberal Vermont Governor and DNC Chairman Howard Dean, recently wondered aloud whether or not the president had stepped out of bounds with his decision to rewrite Obamacare! (He was right. But Obamacare is just the very tip of a very large iceberg.)

As you might expect, many members of Congress have had enough. And that’s why the House of Representatives held a critical hearing on Obama lawlessness this week, entitled “The President’s Constitutional Duty to Faithfully Execute the Laws.”

Per The International Business Times:

Convinced that President Barack Obama is writing his own laws on issues such as health insurance and immigration reform, the House Judiciary Committee on Tuesday will examine just how much latitude the nation’s chief executive has to do so.

That’s when the committee will hear from four experts during a 10 a.m. hearing on “The President’s Constitutional Duty to Faithfully Execute the Laws.” The experts have a mix of legal, constitutional and health policy backgrounds.

Congressional Republicans have accused the president of circumventing the nation’s laws he disagrees with. They have specifically cited Obama’s actions on the Affordable Care Act (aka Obamacare), which Republicans have tried almost 50 times to repeal, and also want to knock him for enacting policy initiatives on issues that failed to win Congress’ approval, such as the DREAM Act.

Committee Chairman Rep. Bob Goodlatte (R-VA) set the tone for the discussion with his opening statement: “The Obama administration…has ignored the Constitution’s carefully balanced separation of powers and unilaterally granted itself the extra-constitutional authority to amend the laws and to waive or suspend their enforcement. This raw assertion of authority goes well beyond the ‘executive power’ granted to the President and specifically violates the Constitution’s command that the President is to ‘take care that the laws be faithfully executed.’”

During the hearing, the Committee heard from four top legal and constitutional experts (click the links below to read their written statements): Professor Jonathan Turley, George Washington University Law School; Professor Nicholas Rosenkranz, Georgetown University Law Center; Simon Lazarus, Constitutional Accountability Center; and Michael F. Cannon, Director of Health Policy Studies, Cato Institute.

To a man, each of these experts, while focusing on different aspects of the “Obama way” in Washington and documenting their arguments in great detail, came to the same conclusion: This president is out of control.

Jonathan Turley’s explained in his opening remarks:  “People of good faith can clearly disagree on where the line is drawn over the failure to fully enforce federal laws. There is ample room given to a president in setting priorities in the enforcement of laws. A president is not required to enforce all laws equally or dedicate the same resources to every federal program. Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law.”

Strong words from a respected academic.

Of course among the most egregious examples of Obama lawlessness cited by these experts is the President’s shameless disregard for our immigration laws, and his steadfast commitment to enacting illegal alien amnesty by hook or by crook.

Nicholas Rosenkranz, for example, noted that the Congress has repeatedly considered and rejected the DREAM Act, a legislative initiative supported by the president that would “exempt a broad category of illegal aliens” from immigration law. Unlike Obamacare, says Rosenkranz, where Obama refuses to enforce a law he signed, in the case of the DREAM Act, “the President is complying meticulously — with a bill that never became a law.”

On June 15, 2012, the President announced that he would “simply not enforce the INA against the precise category of aliens described in the DREAM Act,” noted Rosenkranz. Who needs Congress? Not this president.

Now congressional hearings are important. And, as the nation’s most effective government watchdog organization, we welcome congressional attention to the president’s unconstitutional unlawful behavior. Better late than never on this issue, I suppose. Some Republicans are even beginning to talk of impeachment.

But we have been on the case since Day One.  You can see our special reports on these topics on our website, look at the documents we uncovered through our investigations, or read our legal filings documenting the president’s abuse of office.  And, of course, we have our New York Times Bestseller Corruption Chronicles to serve as your handy reference guide for this administration, which is off the rails and out of control.

And if you want more of the unvarnished truth about Obama scandals, the best place to get the latest news is at JW’s media education panels. And, as luck would have it, we have a very important “Amnesty Update” panel coming up next week.

Per usual, we have assembled a top notch panel of experts of our own, including Congressman Steve King (IA-04), U.S. House of Representatives; Mark Krikorian, Executive Director of the Center for Immigration Studies and Rosemary Jenks, Director of Government Relations for Numbers USA.

The panel, which will be held Tuesday, December 10, 2013, from 10:30 to 11:30 am at JW headquarters, will examine the status of amnesty efforts in Congress and President Obama’s controversial decisions to suspend deportation for entire categories of illegal aliens.

I hope you can join us. The event is free of charge and open to the press and the public. (You can RSVP if you do plan to attend at jwevents@JUDICIALWATCH.ORG.) But if you can’t make it, then you can see it streamed live at http://www.judicialwatch.org/live.

Until next week…

(Washington, DC) – Judicial Watch announced today that on November 25, 2013, it filed a Freedom of Information Act (FOIA) lawsuit against the Department of Health and Human Services (HHS) to obtain government records related to enrollment in the controversial Patient Protection & Affordable Care Act – also known as Obamacare (Judicial Watch v. U.S. Department of Health and Human Services (No. 1:13-cv-01855)).

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The lawsuit was filed after HHS failed to respond to an October 7 Judicial Watch FOIA request seeking the following information: Any and all records concerning, regarding, or related to the number of individuals that purchased health insurance through healthcare.gov between October 1, 2013, and October 4, 2013.

The Healthcare.gov website, officially launched on the Tuesday, October 1, immediately encountered substantial problems typical of those reported by the Chicago Tribune:

Consumers seeking more information on their new options under the Affordable Care Act were met with long delays, error messages and a largely non-working federal insurance exchange and call center Tuesday morning.

Pressed for an explanation in a conference call with reporters that afternoon, Marilyn Tavenner, head of the HHS Centers for Medicare and Medicaid Services, refused to disclose the number of people who had purchased insurance through the site saying, “We have just decided not to release that yet.”

As the Obama administration finally began releasing its version of the enrollee numbers in November, a controversy ensued over the accuracy of the HHS figures. In an article entitled, “Who Counts as an Obamacare Enrollee – the Administration Settles on a Definition,” the Washington Post revealed that the Obama administration had abandoned the conventional definition of a health plan enrollee, apparently in an attempt to inflate its figures.

“Health insurance plans only count subscribers as enrolled in a health plan once they’ve submitted a payment,” the Post reported. “That is when the carrier sends out a member card and begins paying doctor bills. When the Obama administration releases health law enrollment figures later this week, though, it will use a more expansive definition. It will count people who have purchased a plan as well as those who have a plan sitting in their online shopping cart but have not yet paid.”

Significantly, the HHS figures did not break down enrollment numbers by age. The administration had announced that its goal is to sign up 2.7 million people between the ages of 18 and 35, in an apparent attempt to help offset the risk of insurance pools consisting primarily of older, more sickly people, who traditionally drive up health care coverage costs. According to the website, Governing.com, “Officials said demographic information will be included in future releases but didn’t specify when.”

Without the complete HHS records, therefore, it remains difficult to confirm the accuracy of both the Obamacare visitor and enrollment figures. Complete raw figures are necessary to fully determine such pertinent information as the cost of premiums, the amount of subsidies given to those enrolled, demographics of those enrolled, whether an individual’s enrollment was based on the mandate, and whether the number of enrollees is even a helpful statistic due to website glitches. Hence, the Judicial Watch October FOIA request and subsequent November 25 lawsuit.

“To be blunt, we think the Obama administration is telling more lies about these Obamacare enrollment numbers.  And sure enough, the administration refuses to turn over one document to us about these basic numbers about the healthcare.gov website,” said Judicial Watch President Tom Fitton. “The fact that we have to now go to federal court to get simple answers about how many people signed up for Obamacare shows that this administration has utter contempt for the people’s right to know.”

November 15, 2013

President Obama Unilaterally Rewrites Obamacare – Again
Judicial Watch in Court against Cook County, IL, Sherriff for Refusing to Honor Immigration Detainers
Government Spying Out of Control
Investigative Reporter, Clinton Expert, Joins Judicial Watch

President Obama Unilaterally Rewrites Obamacare – Again

He did it again. Facing a deluge of criticism for lying about the fact that his Obamacare law would cause health insurance plans to become cancelled for millions of Americans, President Obama has decided once again to thwart Congress, chuck the U.S. Constitution out the door and rewrite the law.

As reported by The Washington Times:

President Obama turned to prosecutorial discretion yet again Thursday as he tried an end run around Congress, claiming unilateral authority to let companies continue to offer health care plans under Obamacare even if those plans violate his namesake law.

It’s the latest example of the White House trying to work around Congress and instead take action on its own, and in this case it comes as Mr. Obama seeks to stop a wholesale abandonment of his health law by Democrats who have watched the rocky rollout.

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Here’s how this new scheme works. The Obama Department of Health and Human Services has notified the nation’s state insurance commissioners that they now have federal permission to allow consumers who already have insurance policies that do not meet the requirements of Obamacare to keep them through 2014. (At least one state commissioner rejected the president’s offer within hours of its announcement.)

This is not the law passed by Congress and signed by the president. This is a brand new law, crafted by Obama to deflect criticism for the terrible consequences of his terrible health care overhaul. It is, “extralegal” as noted by the Weekly Standard, to say the least.

And if this outrageous abuse of power was supposed to calm the nerves of Democrats, it failed. Democrats in Congress are pushing forward with dubious legislative fixes of their own, while a number of liberal power brokers, including Howard Dean, wondered aloud if President Obama had the authority to change the law. (As I said; he didn’t.)

If it was supposed to elicit the support of health insurers, it failed. “Changing the rules after health plans have already met the requirements of the (Obamacare) law could destabilize the market and result in higher premiums,” Karen Ignagni, president of the industry trade group America’s Health Insurance Plans (AHIP), said in a statement.

As CBS News pointed out, the president’s act of extralegal desperation represents a massive flip-flop: “The president’s stance on the matter has shifted significantly in the past few weeks – while he has now apologized for the issue and has acknowledged it is a problem, he initially suggested that he wasn’t breaking his promise.”

Obama maintained this defensive posture, perhaps hoping the press would bail him out, until the dam broke and the flood of criticism proved too much for the president and his apologists to overcome.

This is now an established modus operandi for this president. When he runs into trouble, he first looks for the sympathetic press to defend him. And when the problem is too big for them, he does whatever it takes to win back favor – rule of law be danged.

We saw this when he delayed the “employer mandate” provision of Obamacare to avoid catastrophic political results on Election Day 2013. (JW filed a lawsuit on behalf of Florida orthodontist Dr. Larry Kawa over the president’s flagrant constitutional overreach.)

The last straw was when members of the Democratic Party, led by Bill Clinton, turned tail and sprinted away from the president over Obamacare. And who could blame them? Look at the dismal numbers as reported by Breitbart.  Only 27,000 “enrolled” via the federal healthcare exchange – a number that overstates the number of those who actually purchased insurance.  Let me put it this way, there will be more of you who read this email than the number of Americans who purchased Obamacare through its $637 million train wreck of a site.

Yet seven million were expected to lose their health insurance by year’s end. In fact, five million had already received cancellation notices by the time Obama decided to ride in and “save the day” with his unconstitutional power grab.

The Obamacare rollout has been disastrous from the start – characterized by website “glitches,” outright lies, broken promises and desperate calls from the Obama White House for consultants to come clean up the mess – at taxpayers’ expense, of course.

Folks, all of this was an inevitability. JW opposed Obamacare from the start because we felt it was unconstitutional, unwise, and unsound. Nonetheless, the president managed to ram it through Congress and squeak it past the United States Supreme Court (thank you, Chief Justice Roberts). And, as it stands today, it is the law of the land.

But there could be a silver lining in these latest developments. As I noted with our lawsuit for Dr. Larry Kawa against the Obama administration’s decision to delay the employer mandate, the best way to ensure the repeal of a bad law is to enforce it vigorously – to paraphrase former President Ulysses S. Grant.

Now supporters of the president, and Obamacare, are forced to live with the law and all of its disastrous consequences, the president’s last-ditch, face-saving attempt notwithstanding.  This isn’t over.

I want you to know that Judicial Watch has launched a comprehensive investigation into the Obamacare rollout fiasco. We have filed more than a dozen Freedom of Information Act (FOIA) requests with government agencies including the Office of Management and Budget, the Office of Personnel Management, the Department of Health and Human Services, the Centers for Medicare and Medicaid Services, and the White House Office of Health Reform demanding public documents on issues including the design; deployment and testing of the Healthcare.gov website; the security of personal information on that website; the involvement of the insurance industry in planning the rollout; and the involvement of Organizing for America, Obama’s personal political organization, a designated “champion for coverage” in the rollout phase.

And all that just scratches the surface of our Obamacare accountability effort.  Stay tuned.

Judicial Watch in Court against Cook County, IL, Sherriff for Refusing to Honor Immigration Detainers

Federal law is clear. When Immigration and Customs Enforcement issues an “immigration detainer” after an illegal alien has been arrested, local law enforcement officers are required to maintain custody of the alien for 48 hours.

And the law prohibits local and state officials from prohibiting their employees from communicating with federal immigration officials regarding the legal status of individuals they arrest.

Cook County, Illinois, Sherriff Thomas Dart has ignored these federal mandates for two years, refusing to honor immigration detainers and blocking federal immigration officials from accessing records regarding prisoners in his custody. This is now the subject of a Judicial Watch taxpayer lawsuit. Our lawyers will be traveling to Obama’s hometown Chicago next Tuesday for an important court hearing over whether to dismiss our case.

Dart says federal immigration law enforcement is optional – merely a “request” from federal officials. But before getting to JW’s legal arguments, let’s take a look the plain language of the regulation (8 CFR § 287.7) and statute (8 USC § 1373) as they pertain to the two issues in question:

  1. Notice of Detainer: “Upon a determination by the [U.S Department of Homeland Security] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays and holidays in order to permit assumption of custody by the Department.”
  2. Communication: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Do these sound like requests to you? Not to me, or JW’s attorneys. And that’s the point.  Per JWs latest court filing:

“[The law] could not be any clearer…on its face, a detainer issued under [the law] is a direction from the U.S. Department of Homeland Security – in particular ICE – to a criminal justice agency – in this case [Dart] – to do something. He must maintain custody of the alien subject to the detainer for not more than 48 hours beyond the time that the alien would otherwise be released. The duty could not be clearer, and it does not authorize, much less require, the exercise of any discretion of decision-making.”

“[The law] imposes clear and mandatory legal duties on [Dart]. By prohibiting…personnel or employees from responding to inquiries by federal immigration officials about prisoners’’ citizenship or immigration status [Dart] is defying his duties…By prohibiting federal immigration officials from having access to prisoners or the records of prisoners in [Dart’s] custody or using…facilities for investigative interviews to obtain information about prisoners’ citizenship or immigration status, [Dart] is also defying his duties [under the law].”

As you may recall, JW brought its lawsuit on behalf of Illinois resident Brian McCann, whose brother, Denny McCann, was run over and killed in June 2011, by an unlawfully present alien who had just completed a two-year term of probation for a 2009 DUI conviction.

We must never forget that these lawless sanctuary policies that help illegal aliens remain “above the law” always have real victims with real families.  I will be sure to let you know how things turn out.

Government Spying Out of Control

Another bombshell press report hit the wires on Thursday regarding the Obama administration’s Big Brother data collection scheme.

Per McClatchy:

U.S. agencies collected and shared the personal information of thousands of Americans in an attempt to root out untrustworthy federal workers that ended up scrutinizing people who had no direct ties to the U.S. government and simply had purchased certain books.

The intent was to gather information about two government employees reportedly teaching people how to pass lie detector tests. Investigators believed some of the individuals who received this instruction might use the information to gain government security clearances they might otherwise not be able to obtain.

In the course of this investigation, federal officials gathered information on 4,904 individuals. They then shared the data with officials from as many as 30 other federal agencies (including the CIA and IRS) that in turn put these “suspects” on government “watch lists.”

And here’s the problem. Not all of these people were government employees. In fact, not all of them even received the lie detector instruction!

It turned out, however, that many people on the list worked outside the federal government and lived across the country. Among the people whose personal details were collected were nurses, firefighters, police officers and private attorneys, McClatchy learned. Also included: a psychologist, a cancer researcher and employees of Rite Aid, Paramount Pictures, the American Red Cross and Georgetown University.

Moreover, many of them had only bought books or DVDs from one of the men being investigated and didn’t receive the one-on-one training that investigators had suspected.

These new reports come on the heels of the NSA controversy, which involved the agency’s program to stockpile personal data on American citizens, including phone and Internet records, for the alleged purpose of protecting the country from the threat of terrorism.

Judicial Watch is already uncovering records related to the NSA data mining controversy. In fact, last week, we released documents demonstrating that key advisors to the president expressed deep concern over the NSA’s activities.

The documents include a series of emails between members of President Obama’s newly created Review Group on Intelligence and Communications Technologies (Review Group) and the Privacy and Civil Liberties Oversight Board (Oversight Board).

The emails, obtained pursuant to an August 28, 2013, Freedom of Information Act (FOIA) request, show that Obama administration advisers had long standing concerns about the Patriot Act which authorized controversial NSA surveillance of Americans’ telephone and Internet activities.

And now we know, per these latest news reports, this “data mining” approach isn’t limited to programs designed to thwart terrorism.  Stay tuned…

Investigative Reporter, Clinton Expert, Joins Judicial Watch

As scandals within the Obama administration continue to proliferate, Judicial Watch is adding firepower to its legal and investigations teams. And I would like to close this week by extending a welcome to the newest member of the JW team, investigative journalist Micah Morrison.

Micah is a perfect fit for Judicial Watch’s investigations team.

As a senior writer and, later, chief investigative reporter for The Wall Street Journal editorial page from 1993 to 2002, Morrison led the investigations of the Clinton administration. He also reported on union corruption, Indian casino gaming, and the Bank of Credit & Commerce International (BCCI). He is co-editor, with Journal Editor Robert L. Bartley, of the six volume series, Whitewater: A Wall Street Journal Briefing. The newspaper nominated him four times for the Pulitzer Prize.

Of course, we are delighted to bring veteran journalist Micah Morrison onto the Judicial Watch team as we make a major push into investigative reporting. The media world we live in today presents many new opportunities for influential reporting to hold politicians and public officials accountable. Micah is well known for his integrity, fairness and enthusiasm for great stories. As Judicial Watch’s chief investigative reporter, he will work closely with our team of investigators and lawyers to get more of the truth of what our government is up to.

Morrison’s work has appeared in many publications, including The Wall Street Journal, New York Times, New York Post, Daily News, American Spectator and Parade Magazine. From 2007 to 2011, he was a consultant to Fox News for investigative projects, leading the reporting and writing for the Fox News special, “Iran’s Nuclear Secrets,” and contributing to FoxNews.com and the Fox Business Network. A graduate of Bennington College, he is the author of Fire in Paradise: The Yellowstone Fires and the Politics of Environmentalism (HarperCollins).

Micah, for his part, is eager to advance Judicial Watch’s educational mission to expose what the government is up to:

“I’m thrilled to be joining the Judicial Watch team. For nearly two decades, Judicial Watch has been the leading Freedom of Information Act requestor and litigator, holding government accountable and making it more transparent. Judicial Watch’s team of FOIA-focused investigators and lawyers is unmatched by any newsroom in America. Our new world of digital journalism, the Internet and social media, in addition to the legacy media, presents many opportunities for our reporting. I look forward to working with Judicial Watch to make the most of these opportunities in pursuit of great journalism.”

My guess is Bill and Hillary Clinton will be reading every word Micah writes for Judicial Watch!

Until next week…

November 8, 2013

The “Inconvenient Truth” About Obamacare
A Sweetheart No-Bid Contract for Obama-Connected Marketing Firm?
Help Protect the Religious Freedoms of our Military Servicemen and Women

The “Inconvenient Truth” About Obamacare

If you’ve ever been on a used car lot, you have experienced one of the great truisms in sales – often the harder the pitch, the weaker the product. And from the beginning, we’ve seen an unprecedented effort by the Obama administration to polish up its lemon of a health care overhaul and to convince the American people they’re getting a luxury vehicle.

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We know about the “misleading” advertisements featuring former television star Andy Griffith, the high-priced marketing firm, hired by the Obama administration to craft its messaging, the massive internet search engine campaign – all at taxpayer’s expense.

We know about these things because Judicial Watch has done the gritty work of forcing the release of government records. (The total cost of the Obamacare propaganda campaign was estimated to be as high as $200 million, by the way.)

And regarding the purpose of this propaganda machine, remember this gem from documents we uncovered from HHS? “Health and program-related messages are processed by the target audience according to a particular reality, which he or she experiences. Attitudes, feelings, values, needs, desires, behaviors and beliefs all play a part in the individual’s decision to accept information and make a behavioral change.”

That one still creeps me out as it is the exact description of brainwashing.

But this week, courtesy of the Wall Street Journal, we learned that the Obama administration considered, but rejected, telling the truth about Obamacare’s destructive effects

Per The Wall Street Journal:

As President Barack Obama pushed for a new federal health law in 2009, he made a simple pledge: If you like your insurance plan, you can keep your plan. But behind the scenes, White House officials discussed whether that was a promise they could keep.

When the question arose, Mr. Obama’s advisers decided that the assertion was fair, interviews with more than a dozen people involved in crafting and explaining the president’s health-care plan show.

But at times, there was second-guessing. At one point, aides discussed whether Mr. Obama might use more in-depth discussions, such as media interviews, to explain the nuances of the succinct line in his stump speeches, a former aide said. Officials worried, though, that delving into details such as the small number of people who might lose insurance could be confusing and would clutter the president’s message.

“You try to talk about health care in broad, intelligible points that cut through, and you inevitably lose some accuracy when you do that,” the former official said.

You read that right. Government officials were worried the truth would clutter the president’s message. And so they kicked accuracy to the curb in favor of “simpler” falsehoods.

(Actually, the president’s promise was even stronger than described by the Journal: “if you like your health care plan, you’ll be able to keep your health care plan, period. No one will take it away, no matter what.” [Emphasis added.])

Now that Obamacare is law, we now know the truth. The Journal continues…

The breadth of Mr. Obama’s statement proved to be a miscalculation. Mr. Obama repeated the claim, with only occasional caveats, through this week, when a flurry of cancellation notices from insurers to customers around the country prompted him to recalibrate.

In other words, the “if you like your plan you can keep it” Obama mantra turns out to be a bold-faced lie and the president is trying to save face (or lie about his initial lies) while acknowledging what cannot be ignored.

According to industry experts, as many as 10 million Americans will have their health care plans terminated by year’s end, leaving them with skyrocketing out-of-pocket expenses. You see, health insurers read the writing on the wall. Existing plans will surely die out if there are no new customers. So why keep them on life support?

Of course, the Obama administration saw this coming. They knew plans would be cancelled. In fact, that was one of their principle goals, to have more Americans leave their health insurance plans and enter into “improved” plans offered through Healthcare.gov exchanges. But this proved to be an “inconvenient truth” that would surely undermine the president’s bumper sticker campaign message. And they couldn’t take that risk – 10 million Americans be damned.

By the way, the Obama excuse that Obamacare only changed the plans in the individual insurance market is also misleading. Employers who provide health insurance have also been forced to curtail wages, hours, and jobs to comply with the Obamacare mandate.  If you have a job with health insurance and get laid off, you will lose your health insurance as surely as the millions of individuals now receiving Obamacare-caused cancellation notices.

The net result for the president is some very real trouble. Democrats in Congress who voted for this monstrosity are nervous, and the leftist press is having an increasingly difficult time making lemonade.  (Even Obama defender and television host John Stewart is “tired of all the Obamacare lies.” This scandal has all but shredded, for those few who still believed it, the notion of Obama’s having the most transparent administration in history.)

And now, the Obama administration has given up on recalibration in favor of distraction, by arguing that it doesn’t matter, because these people will ultimately have better health plans. The American Enterprise Institute’s Jonah Goldberg demonstrates the folly of this argument:

If a landlord promises you can keep your dog when you move into an apartment, but then after you sign the lease he takes your dog and replaces it with a stuffed one, he wasn’t telling you the truth. The landlord’s view that the new dog is better (“No mess! No noise!”) is utterly irrelevant to the question of whether the landlord lied — and it doesn’t make you a fool for preferring your old dog, either.

At any rate, it doesn’t appear to be working. The American people are too smart. We saw Obamacare for what it was – a watered down version of health care socialism – and that’s why the public has never supported it. (Or “make a decision to accept information and make a behavioral change,” to use the administration’s creepy Big Brother language.)

Judicial Watch and other conservatives always knew that Obamacare, conceived in corruption and secrecy, was full of lies and would lead to the destruction of health insurance system that is taking place now.

The lying president will try to power his way through this credibility crisis.  And I’m sure the media, now going after him for a bit, will get back on board with Obama.

In the meantime, Judicial Watch will persist and seek truth and accountability.  We have many pending Obamacare open records investigations, but this week we began a new, massive, and nationwide investigation of the Obamacare debacle. I will provide you more details later, but rest assured that we are on the case!

A Sweetheart No-Bid Contract for Obama-Connected Marketing Firm?

The government contracting process is supposed to be transparent, fair, and subject to open bidding so the American people can have confidence that politicians and their appointees in the federal bureaucracies do not engage in the behavior of rewarding campaign donors with sweetheart deals.

Note I said supposed to be transparent, fair and open. Often it is not, as evidenced by an apparently corrupt arrangement between the Obama USDA and an Obama-connected marketing firm.

This week we announced the release of 44 pages of documents revealing that in 2010, the USDA evidently violated federal law by giving a $100,000 no-bid contract to a marketing firm with close ties to President Obama’s 2008 and 2012 presidential campaigns. The funds were for the purpose of spearheading Michelle Obama’s “Let’s Move” obesity initiative.

How close were the ties?

Top executives of the firm Shepardson, Stern, and Kaminsky (SS+K) previously held key positions on Obama campaign staffs, and the firm produced advertising for the 2012 Obama campaign, including the controversial “Your First Time” TV commercial, which compared voting to losing one’s virginity.

Importantly, even the USDA has admitted that the contract might have been unlawful. Following the early February 2010 delivery of the SS+K materials, the USDA, in an apparent effort to justify the no-bid contract, produced a “Request for Ratification of an Unauthorized Commitment” conceding possible violations of Federal Acquisition and Agriculture Acquisition regulations.

The Request said the USDA employee “was not aware of the contracting process” and that “the importance of this program necessitated an aggressive schedule that hindered his ability to research the process.”

Let me cut through the bureaucrat-speak for a moment:  What the Obama administration argues here is that the urgent need to advance Michelle Obama’s obesity initiative was of greater importance than following the law! And the person who presided over the contract allocation did not even have a basic understanding of the contracting process.

Once again, we see the perfect storm of incompetence, corruption and cover-up from this administration.

The records also reveal that in early April the Deputy Director of the USDA Office of Procurement & Property Management sent an email to the project director asking, “What did we get for our money?” Also, the commitment might have been “unauthorized.”

The documents obtained by JW on October 22, 2013, were in response to a June 13, 2013, Freedom of Information Act (FOIA) request seeking the following information from January 1, 2010, to the present:

  • Any and all contracts between USDA and SS+K, a creative marketing firm located at 1717 Rhode Island Avenue NW, Suite 660, Washington, DC 20036 and Pine Street, 30th Floor, New York, NY 10005.
  • Any and all records of communication between any official, employee, or representative of the United States Department of Agriculture and any officer, employee, or representative of SS+K.

According to the documents, the USDA awarded SS+K the “unauthorized commitment,” no-bid contract to produce the “Let’s Move” logo, slogan, and artwork for Michelle Obama’s campaign, as well as the creative design for the “Let’s Move” website, which right now features characters from the Muppets as well as photos of Michelle Obama dancing/exercising.

ThHe and conservatives, that any government-funded campaign that involves puppets does not rise to the level of an “urgent need” that requires government officials to ignore the rule of law.)

SS+K evidently delivered the completed project in February 2010 with a 30-day invoice. On April 5, 2010, Jodey Edwards, Deputy Director, USDA, Office of Procurement & Property Management, sent an email to USDA Administrative Officer Yvette Ward asking, “What did we get for our money … any deliverable? I know this is an unauthorized commitment: however the[y] still must provide evidence of what is being paid for …”

To say that SS+K saw a precipitous rise in its government contracting business after Obama took office would be an understatement.

Prior to the $100,000 “Let’s Move” no-bid contract, SS+K also received contracts totaling $2 million from the Obama Department of Education for the “TEACH” teacher recruitment campaign in 2010. Previous to the Obama election, the firm, founded in the early 1990s, had landed only one government contract, a $50,000 contract from the Department of Defense in 2002.

This increase in government business – from $50,000 to $2.1 million – comes as no surprise given the connections of the company’s higher-ups.

The firm’s founding partner, Robert Shepardson, previously led SS+K’s work on the Obama campaigns in 2008 and 2012. Marty Cooke, who also worked on the “Let’s Move” account for SS+K, was the creative director during the Obama ’08 campaign. SS+K vice president Mike Moffo is the former National Director of Special Projects for the Obama 2008 campaign. Other SS+K clients include the AFL-CIO, George Soros’ Open society Foundation, and the Democratic National Committee.

Look, this is as much a sweetheart deal as I have ever seen and I have seen a lot of them. Just as with the no-bid contract for the disastrous Obamacare website, it is clear Barack Obama is paying off his friends out of the public treasury.  And for the USDA to try to justify its sleight of hand by claiming that the “importance” of the program “necessitated an aggressive schedule” is both disingenuous and insulting.

Help Protect the Religious Freedoms of our Military Servicemen and Women

As Veteran’s Day approaches, I want to add my voice to the chorus of voices expressing appreciation for our men and women in uniform. At Judicial Watch we have a number of employees who have served our country, and the protection and defense of our American soldiers, sailors, airmen and Marines has always been a priority for us.

That’s one reason why we have been so active in trying to get to the truth behind the outrageous and offensive decision by the Obama administration to block World War II veterans from visiting a memorial built to commemorate their courage and sacrifices 60 years ago.

And it’s also why we have joined a coalition of 19 organizations, led by the Family Research Council, to protect the religious freedoms of all American servicemen and women.

And yes, sadly, these freedoms need protecting.

If you have just a moment, please click over to this video, “Clear and Present Danger: The Threat to Religious Liberty in the Military.” In the video you will hear directly from military personnel who have been attacked and marginalized for their Christian beliefs.

And you want to know the saddest thing about this video? These men must speak from the shadows and have their voices altered to protect their identities – simply because they are Christians.

Honestly, I never thought I’d see the day.

“The threats to military religious freedoms have gotten much, much worse,” says one of the GIs in the film. Bibles and prayer services have been banned. The Air Force has removed “God” from a unit’s logo. The Army has removed the cross and steeple from a chapel. And much worse.

The personnel in the film chillingly talk of the tactics of fear and intimidation and abuse they have suffered for their beliefs.

And think about the irony for just a moment. The military is shifting from a policy of “Don’t Ask, Don’t Tell” with respect to the sexual preferences of service personnel to one allowing homosexuals to serve openly and without discrimination, while Christian military personnel are being persecuted – to the point where they dare not even show their faces or have their voices heard on the issue.

Something is very, very wrong throughout the United States military, and as the GIs in this film note, the problems will not stop there.

“It represents a clear and present danger to our military service to eradicate our forces from the Christian influence,” states one of the military service members. “I think we will see dire consequences if we don’t work now to stop the repression of Christian faith, particularly in the military.

“The American people need to understand, this is not going to stop with the military. It’s not going to stop there. This kind of repression is crouching at the door of our American churches…It’s important for us as Christians to step up to the challenge.”

So, will you step up to the challenge? Here are three things you can do this weekend in the lead up to Veteran’s Day.

  1. Watch the video.
  2. Visit www.militaryfreedom.org. There are a number of petitions you can sign to show your support for our coalition’s cause. Add your voice to ours.
  3. Read the FRC’s “Clear and Present Danger” report, which recounts in detail all of the attacks on religious freedom inside the military. Get informed and become an advocate.
  4. Spread through your networks this newspaper ad that will appear nationally on Monday (Veteran’s Day).
  5. Educate yourself about Judicial Watch’s investigations and disclosures on the radical left’s abuse of our military.

Honestly, I wish that I could simply use this space this week for the sole purpose of thanking our servicemen and women for all they do to keep us safe from harm. But saying “thank you” is just not enough this Veteran’s Day.

Our military personnel who are traditional Christians have been placed on the “enemies list” of this administration, as evidenced by the WWII Memorial and national cemetery desecrations, and their First Amendment-protected religious freedoms are being attacked on a daily basis.

This is our time as Americans, as Christians, as people of faith, to rise up and do our part to defend our military personnel from these attacks and abuses. This is a great way to say “thank you” to those who serve.

Until next week…

 

 

Chaos and Corruption in Obama’s Washington

How many people signed up for Obamacare after “the great reveal” last week?  Simple question, yes? One that the Obama administration should be able to answer quite easily, given its technical sophistication and unprecedented ability to collect and analyze data of all kinds.

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But the “most transparent administration in history” says we’ll get no data until November. And Treasury Secretary Jacob Lew tap-danced to the point of exhaustion when asked about the data during his interview with Fox News Sunday host Chris Wallace. Check out the frustrating exchange courtesy of CNSNews.com.

How many actually signed up, sir?” Wallace asked Lew.

“You know, they have six months to sign up. This is a big decision. We never—“

“How many signed up?” Wallace asked again.

“I don’t have the exact number, but the question isn’t how many — the question –

“Do you have any number?” Wallace asked. “Because the government has refused to tell us how many.”

“It’s the wrong question. It’s the wrong question,” Lew said.

“No it isn’t,” Wallace replied.

“The right question–” Lew said, but again, Wallace cut him off.

“The question is, how many people have actually signed up?” Wallace asked.

“Chris, we know that people take time to make important decisions like this. They go on(line), they compare their options. The fact that so many millions of people rushed to get information is a very good sign.”

“The answer is they couldn’t,” Wallace said.

I’ll spare you the rest as it went on like this for some time. It took a newspaper based in another country to get the answer about how many signed up. London’s Daily Mail broke the news that only 51,000 were able to “apply” for insurance on the failing Obamacare government web sites.

Some in the liberal press did their best to provide cover. The Washington Post called the effort to track the data “tricky business.” While Mother Jones said it doesn’t even matter how many people signed up, but then parroted the Post’s excuse: “…getting lots of uninsured people into private health plans…is maddeningly difficult and time-consuming,” writer Stephanie Mencimer complained.

The only reason the number “doesn’t matter” to the Left is because the number is embarrassingly low. You can bet if the number represented good news for the president, it would have been on the tip of the tongue of every Obama administration spokesperson throughout the federal leviathan – and page-one material for the liberal press.

But that wasn’t the big news during the Obamacare launch. No, the headline was the fact that people couldn’t sign up even if they wanted to due to a massive breakdown in the system: a problem that has yet to be fixed! “The second week of Obamacare enrollment started a lot like the first: with error messages,” reported Politico.

Glitches continued crippling online enrollment in new Obamacare exchanges on Monday, despite assurances by the White House that the consumer experience would markedly improve this week.

The Obama administration deployed senior officials over the weekend to emphasize that problems on the enrollment site, HealthCare.gov, were primarily the result of intense interest from prospective enrollees. But their claims were undercut by a Sunday evening Wall Street Journal report claiming serious design flaws in the system’s infrastructure.

According to The Associated Press, the system was “drawing lots of rotten tomatoes” with only 1 in 10 reported successes on the system. CBS This Morning reported that media outlets are having a difficult time finding anyone who has actually been successful (and I’m sure it’s not for lack of trying). One computer programmer summed it up: “It wasn’t designed well, it wasn’t implemented well, and it looks like nobody tested it.” (Digital Trends called the system a “befuddled beast” noting that the website alone cost $634 million. By way of comparison it took Facebook six years to receive $600 million in operating funds.)

Even liberal political activist John Stewart, typically an apologist for all things Obama, made a mockery of the Obamacare launch during a “cringeworthy” interview with Health and Human Services Secretary Kathleen Sebelius this week: “I’m gonna try and download every movie ever made,” The Daily Show host quipped, “and you’re gonna try and sign up for Obamacare—and we’ll see which happens first.”

We already know that Obamacare makes a mockery of the rule of law. See, for instance, our lawsuit for Dr. Larry Kawa’s Kawa Orthodontics, LLP trying to get Obama to follow his own darn healthcare law.

Now it is clear Obama isn’t following his own law because he can’t make it work. This is no surprise to constitutional conservatives who understand that the markets for health care are exceedingly complex and can’t be managed by socialists in Washington.

While Obamacare was busy tanking, the National Park Service (NPS) continued its oppressive blockades – even shutting down enterprises not run by the government. It all started last week when World War II heroes were denied access – from seeing their own memorial – by National Park Service personnel because, they were told, of the government shut down.

But here’s the thing. There is no basis for the memorial to be shut down. And it cost the Obama administration more money to keep the memorials closed than to keep them open, as required, 24 hours a day!

One might think that the National Park Service would shrink in embarrassment, especially after the veterans moved past the blockades to complete their mission, leading to major national news coverage. But what did the NPS do? They doubled down!

There’s the Claude Moore Colonial Home in McLean, Virginia, closed by the NPS even though the service hasn’t operated that site since 1980. When the farm resisted, noting that it was operated with private donations and volunteers, the NPS caved and allowed it to reopen.

The Park Service doesn’t own Mount Vernon either, but that didn’t stop the NPS from closing that facility. And Mt. Rushmore? The NPS “went the extra mile and put out orange cones to block the little scenic overlook areas on the roads near Mount Rushmore. You know, just to make sure no taxpayers could catch a glimpse of it,” writes The Weekly Standard in an editorial.

“Think about that for a minute,” the editorial continues. “The Park Service, which is supposed to serve the public by administering parks, is now in the business of forcing parks they don’t administer to close.”

Unless, of course, a group of leftists would like to use the “closed” federal parks to conduct a protest. Which is exactly what happened this week.

Just days after World War II veterans were denied access to their memorial, a large group of illegal alien amnesty activists began setting up for a national demonstration (Camino Americano) on the “closed” mall area adjacent to Capitol Hill.

“Rally organizers said that they would be allowed by the NPS to carry out their protest under their First Amendment rights,” The Washington Examiner reported.

Only a corrupted presidential administration, completely out of touch with the Constitution and all reason, could justify denying military veterans an opportunity to visit a memorial built in their honor while defending the rights of the illegal immigration lobby to have its say.

Unlike most Washington politicians, we won’t let these scandals lie.  We have filed multiple Freedom of Information Act requests to try to expose the truth about the Obamacare debacle.  And we have a filed a half-dozen document requests to expose the full facts about the National Park Service desecration of our nation’s war memorials and parks. We’ll keep watch for you and the other patriotic Americans who are horrified at the chaos and corruption here in DC.  With vigilance and diligence, we can begin to get this town back under control.

Records Obtained by Judicial Watch Reveal U.S. Knew of Sophisticated al Qaeda Plan to Hijack Commercial Airliner in 2000

While the federal government tries to explain to concerned Americans of all political stripes why it was collecting private data from American citizens who appear to have no relation to national security, this week Judicial Watch learned that intelligence officials inside the Clinton administration ignored key intelligence on Osama bin Laden that might have prevented the 9/11 terrorist attacks.

On August 29, 2013, we obtained a Defense Intelligence Agency (DIA) Intelligence Information Report (IIR) revealing that the United States disregarded advanced warning of a 2000 al Qaeda plot to hijack a commercial airliner because “nobody believed that Usama bin Laden’s organization or the Taliban could carry out such an operation.”

We got hold of this blockbuster document, dated September 27, 2001, in response to a May 16, 2002, Freedom of Information Act (FOIA) request – note it took 11 years for the government to cough up the report. It included the following specific revelations:

  • Al Qaeda (AQ) planned to hijack a plane departing Frankfurt International Airport between March and August 2000. The hijack team was to consist of an Arab, a Pakistani, and a Chechen. Chechen withdrawal from the plot delayed the operation. Sheik Dzabir, a 40-year-old Saudi with ties to the House of Saud, directed the operation. Advanced warning of the plot “was disregarded because nobody believed that Usama bin Laden or the Taliban could carry out such an operation.” [Emphasis added]
  • [Al Qaeda] penetrated the consular section of the German Embassy in Islamabad, Pakistan, and was relying on a “Mrs. Wagner” to provide European Union (EU) visas for use in forged Pakistani passports for terrorists.
  • [Al Qaeda] the Taliban, and Chechen Islamic militants all had substantial operating support bases in Hamburg and Frankfurt, Germany. Name, address, and telephone numbers identify an AQ passport forger in Hamburg for Taliban and other Afghan terrorists and support personnel during January and February 2000.
  • The existence of a secure, reliable terrorist-sponsored route to Chechnya from Pakistan and Afghanistan through Iran, Turkey, and Azerbaijan.
  • Documented operational coordination and cooperation between [Al Qaeda] and Chechen militants.
  • A January 2000 two-day hijack planning meeting between bin Laden and Taliban officials in Kabul, Afghanistan.

According to the IIR report, information about the plot came from an unidentified human intelligence source that provided U.S. authorities with copies of eight Arabic letters containing details of the al Qaeda plot. For 13 years the subject report was classified “SECRET,” until it was finally declassified and released to Judicial Watch on August 29, 2013.

This is not a case of hindsight being 20/20. The details of names, addresses, and such, from this reporting should have provided “actionable intelligence” for any number of U.S. anti-terrorist operations. It is clear from Judicial Watch’s in-depth investigations of the 9/11 attacks that the terrorist plot could have been derailed if the leads in these documents had been followed.

Remember, this is not the only evidence ignored by the Clinton administration related to bin Laden.

Judicial Watch previously obtained documents from the Department of State (“Terrorism/Usama bin Ladin: Who’s Chasing Whom?” showing that as far back as 1996, the Clinton administration knew of and ignored a bin Laden terrorist plan against the United States.  The New York Times, reporting on Judicial Watch’s find in 2005, detailed:

State Department analysts warned the Clinton administration in July 1996 that Osama bin Laden’s move to Afghanistan would give him an even more dangerous haven as he sought to expand radical Islam “well beyond the Middle East,” but the government chose not to deter the move, newly declassified documents show.

The documents also warned of a suicide car bombing threat in London: “[redacted] indicated bin Ladin planned to sponsor suicide car bombings against US interests in the UK, in part to punish London for ‘submitting’ to US pressure to bar his entry into the UK.”

As the world now knows, 9/11 was just the beginning. The threat of terrorism continues, and so does our investigation. Our investigators continue to gather information on al Qaeda activities and U.S. investigations leading to the 9/11 hijackings as well as other terrorist attacks.  You can learn more about our anti-terrorism investigations, click here.

HUD Sued for Records of Obama Administration Involvement in “Disparate Impact” Discrimination Cases

Unfortunately, Judicial Watch has uncovered yet another egregious example of racial politics courtesy of the Obama administration, which used the heavy hand of government to protect a discredited racial legal theory. JW is now in court to get to the truth in the matter.

On September 24, 2013, we filed a Freedom of Information (FOIA) lawsuit against the U.S. Department of Housing and Urban Development (HUD) for all records of communications regarding two controversial “disparate impact” housing discrimination cases. The first (Magner v. Gallagher) was dismissed by the Supreme Court in February 2012, and the second (Township of Mt. Holly v. Mt. Holly Gardens Citizens Association) is now scheduled for December 4 adjudication before the Court.

Here’s what we’re after:

  • Any and all records regarding the case pending in the Supreme Court as of the date of this request of Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc., including, but not limited to, communications regarding the possibility of settlement between the parties. This request applies to records regarding this case during any state of its proceedings.
  • Any and all records regarding the case dismissed from the Supreme Court on February 14, 2012, of Magner v. Gallagher, including but not limited to communications regarding the dismissal of the case.

And And what is the “disparate impact” doctrine?

Under “disparate impact” a defendant can be held liable for discrimination for a race-neutral policy that statistically disadvantages a specific minority group even if that negative “impact” was neither foreseen nor intended. In such cases, defendants can be forced to pay for harm caused not by their own actions, but by economic and statistical realities even if beyond their control.

So in other words, intent, motive, opportunity, cause…all timeless operative principles used by law enforcement and the courts to determine if a crime has been committed, are all tossed out the window with “disparate impact.” Ridiculous, right? Yes, and that is exactly why the Obama administration tried to meddle in these cases.

The Magner v. Gallagher disparate impact case arose from a lawsuit by a St. Paul minority contractor claiming that the city’s targeted enforcement of the city’s housing code against rental units reduced the availability of low-income rentals, with a disparate impact upon African-Americans. The Eighth Circuit found in the contractor’s favor, after which the city appealed to the Supreme Court. The Obama Department of Justice (DOJ) then intervened, apparently persuading St. Paul to take the extraordinary step of withdrawing its cert. petition from the Supreme Court docket.

On February 13, 2012, the Wall Street Journal reported that various federal officials had asked the City of St. Paul to withdraw its petition for certiorari. The Obama administration’s concern, explained the article, was that a legal theory known as “disparate impact” might either: 1) harden into law as used by the landlords who had won at the state level or 2) be eviscerated entirely.

Apparently, several federal agencies that rely on that legal theory to secure out-of-court settlements in the consumer lending and family housing arena were reluctant to risk a change in the legal landscape. The next day, the parties to Magner v. Gallagher withdrew their case by “mutual consent.”  This was an extraordinary development.  Imagine you had a case that the U.S. Supreme Court was set to hear?  Can you think of any circumstances that would cause you to withdraw it?  If you’re a local politician, such circumstances might be offers of federal funding and pressure from the nation’s top law enforcement agency.

Judicial Watch separately obtained documentsunder the Minnesota Data Practices Act, showing that St. Paul City Attorney Sara Grewing arranged a meeting between the then-chief of DOJ’s Civil Rights Division, current Secretary of Labor Tom Perez, and Mayor Chris Coleman a week before the city’s withdrawal from the case. Following Perez’s visit, the city withdrew its case and thanked the DOJ and officials at HUD for their involvement.

We are also investigating the Justice Department’s actions in another challenge to the Obama administration “disparate impact” race theory.  The Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action disparate impact case involves a redevelopment plan for Mount Holly Gardens, a 30-acre New Jersey neighborhood of rundown housing and high crime. The plan would have transformed the Gardens into mid-range single-family dwellings. Current and former residents of the Gardens banded together as Citizens in Action to sue, claiming that the plan violated the FHA because a majority of them, predominantly African-Americans and Hispanics, would not be able to afford the new homes.

The district court dismissed the argument, ruling that the redevelopment plan affected Gardens residents equally, without regard to race, and was tied only to economic considerations. The Court of Appeals for the Third Circuit reversed that ruling, holding that the left wing group suing the township had established a case of discrimination under the theory of disparate impact because a majority of the affected residents were non-white. On June 17, 2013, the Supreme Court agreed to the township’s request to take on the issue.

On September 3, 2013, Judicial Watch filed an amicus curiae brief with the Supreme Court on behalf of the township of Mt. Holly. In its brief, Judicial Watch argued, “Section 804(a) of the FHA prohibits only disparate treatment, not disparate impact as the Third Circuit has ruled. An analysis of the legislative history only confirms the clear language of the text.”  So far, the Obama gang hasn’t gotten to the citizens and government of Mt. Holly, so the case is still set for potential resolution by the Supreme Court.

So, in summary, we have evidence that the Obama administration, through current Labor Secretary Tom Perez, improperly intervened to try to prevent the Supreme Court from shooting down its radical racial legal theories. The Obama administration and its liberal activist allies are desperate to preserve the discredited theory of “disparate impact” to bludgeon its opponents as racists and violate equal protection under the law.  Our new FOIA lawsuit is designed to expose the Obama-Holder cover-up and uncover the secrets of this scandal.  Stay tuned.

Join Judicial Watch for a Special Panel: “The Second Amendment under Attack”

I want to close this week by telling you about a special panel Judicial Watch is hosting at its DC headquarters next Tuesday, October 15, 2013, entitled, “The Second Amendment Under Attack.” It will focus on how the recent mass shootings by two mentally ill individuals in Sandy Hook and the Washington Navy Yard have emboldened the Obama administration and its allies to promote policies, through executive action and legislation, restricting certain Second Amendment rights of Americans.

Confirmed panelists include: Dr. John R. Lott Jr., President of the Crime Prevention Research Center and author of “More Guns, Less Crime”; Attorney Stephen P. Halbrook, who represented a majority of members of Congress as amici curiae in DC v. Heller and author of “The Founders’ Second Amendment”; and Emily J. Miller, Senior Editor of the Washington Times Opinion Pages and author of “Emily Gets Her Gun: But Obama Wants to Take Yours.”

The panel will run from 11:30 a.m. – 1 p.m. ET at JW headquarters, 425 Third Street, SW, Suite 800, Washington, DC 20024. If you are not able to join us in person, you can watch live online beginning at 11:30 a.m. ET at http://www.judicialwatch.org/live.

Until next week…

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