Thread: Obama's Insurance 'Fix' Is Unconstitutional

Obama's Insurance 'Fix' Is Unconstitutional

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by Ken Klukowski 14 Nov 2013 1713 post a comment
Outlets are quoting Democratic operative Howard Dean saying of President Barack Obama suspending certain Obamacare requirements, “I wonder if he has the legal authority to do this.”

To remove all doubt: The Take Care Clause of the Constitution absolutely forbids any president from doing exactly what Obama did Thursday.
Obama said he would allow insurance companies to keep offering previously-offered insurance plans that Americans would like to keep. Nobody knows if this means all plans, or only some of them, and how the White House will make such determinations. He says he has “enforcement discretion” to make this change to the Affordable Care Act unilaterally, without consulting Congress.
This is a frightening claim of a sweeping power that is completely inconsistent with the Constitution. A president has “prosecutorial discretion” to prioritize which lawbreakers to prosecute in federal court, but there is no “enforcement discretion” to determine which laws on the books he will enforce.
Article II, Section 3 of the U.S. Constitution commands of every president: “he shall take Care that the Laws be faithfully executed.” Like every provision in the Constitution, it has a legal meaning—and that meaning is the Supreme Law of the Land, which Congress, the courts, and—yes—each president is bound by his oath of office to follow carefully.
Everyone should know from their high-school government classes that Article I of the Constitution gives Congress exclusive power to make federal laws, and Article II of the Constitution gives the American president the executive power to administer and enforce those laws. Article II then includes the language about how the president must faithfully execute those laws.
Among other things, the Take Care Clause was inserted in the Constitution to abolish the Royal Prerogative that the Framers of the American Constitution knew from their lives as Englishmen. It was the power of the king of England to disregard or effectively suspend Acts of Parliament. The king could not make laws, but he could shelve a law that Parliament had passed.
Obama’s announcement is a flagrant and undeniable violation of his constitutional duty under the Take Care Clause. The provisions of Obamacare causing enormous trouble for insurance plans are mandatory, and only Congress can change those parts of the Affordable Care Act. Every day provides additional proof that Obamacare is a complete train wreck, but it is one regarding which only Congress can change the terms.
This president’s relationship to Congress is reaching toxic levels, due in large part to the regularity of his hyper-partisan rhetoric and ongoing disrespect. He is learning that the campaign tactics that enabled him to win two presidential elections are manifestly counterproductive when applied to the arduous task of governing, especially in a country as large and diverse as America.
It is not clear at this point whether anyone would have standing to sue over this matter in court. If the experts who are saying today that this unilateral move will only make matters worse are correct, someone might suffer an individualized injury that they could litigate.
President Obama should hope that doesn’t happen, because if a federal court can get past the procedural hurtles to reach the merits of the case, it’s an open-and-shut case that this president’s actions are unconstitutional—again.
Ken Klukowski is senior legal analyst for Breitbart News and coauthor of “Take Care, Now,” forthcoming from the Harvard Journal of Law & Public Policy. Follow him on Twitter @kenklukowski.

video at link below

http://www.breitbart.com/Big-Governm...constitutional

Joe the Plumber


Explain this one....

From FB Fan Mr Reed... Thank you

National Review


Mark Steyn writes: “On he staggers, with a wave of his scepter, delaying this, staying that, exempting the other, according to his regal whim and internal polling. The omniscient beneficent Sovereign will now graciously “allow” us “folks” to keep all those junk plans from bad-apple insurers. Yet even the wisest King cannot reign forever.” Read the full story: http://natl.re/1btdbMr

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.

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…











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