February 4, 2011

From the Desk of Judicial Watch President Tom Fitton:

Obamacare Moratorium?

A decision by a federal court in Florida sent shock waves through the Obama administration on Monday. Judge Roger Vinson ruled the Affordable Care Act, or Obamacare as it is commonly known, unconstitutional in a consolidated lawsuit that involved 26 states challenging the law.

According to The Los Angeles Times: “A federal judge in Florida dealt President Obama’s healthcare overhaul a sweeping blow Monday, ruling the law unconstitutional because of its requirement that Americans have health insurance starting in 2014.”

Judge Vinson did not mince words in his summary judgment:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

If the government can force you to buy health insurance, Judge Vinson reasoned, it can also force American taxpayers to decide “whether and when (or not) to buy a house, a car, a television, a dinner or even a morning cup of coffee.” Vinson did not think the Constitution allowed the federal government that type of unbridled power.

I encourage you to read Judge Vinson’s ruling in its entirety, as it is an excellent way to learn more about the U.S. Constitution’s limits on the federal government. You can find a link to the 78-page decision here.

What to do next? The law will continue to be vetted by the courts, and likely the Supreme Court. Given Obamacare’s constitutional uncertainty (Judge Vinson threw the whole mess out), it seems useful to offer a practical solution for those of us who oppose this socialist government overreach. To that end, please find below my op-ed which ran this week in The Washington Examiner. The piece is entitled “A Moratorium Needed for Obamacare until its Constitutionality is Decided,” which I have reprinted in full for you below:

President Obama’s signature legislative “achievement” plunged deeper into legal limbo Monday with a decision by a Florida federal judge ruling the entire law unconstitutional. This follows the Dec. 13 Virginia court invalidation of the central component of the president’s health care reform law requiring individuals to buy health insurance. Both decisions hinged upon the constitutionality of the individual mandate. This individual mandate “exceeds the boundaries of congressional power” and would “invite unbridled federal police powers,” U.S. District Judge Henry E. Hudson wrote in his 42-page December opinion. How important is this mandate to Obama’s health care reform law, or Obamacare, as it is widely known? “Without an individual responsibility provision (or mandate), controlling costs and ending discrimination against people with preexisting conditions doesn’t work,” wrote Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius in an editorial published in the Washington Post the day after Judge Hudson’s decision. Indeed, the Florida court Monday found that the whole of the Obamacare law is void as a result of its individual mandate being unconstitutional. U.S. District Judge Roger Vinson wrote, “Because the individual mandate is unconstitutional and not severable, the entire Act (Obamacare) must be declared void.” In addition to Virginia, 25 other states have sued to strike down the law in a consolidated case now before a federal court in Florida. Virtually everyone agrees the constitutional challenges are destined for the U.S. Supreme Court a year or two from now. Congress cannot afford to wait until then. It must impose an immediate moratorium on Obamacare now, until the weighty constitutional concerns at issue are resolved in the courts. As it stands, many of the supposed “benefits” of Obamacare’s individual mandate and other provisions won’t be realized until 2014. And yet, as the law winds its way through the lower courts, American health care consumers and taxpayers are already experiencing significant financial pains through skyrocketing premiums and phased-in taxes that began this year and will cost $502 billion over the next 10 years. In September, the Wall Street Journal reported that health insurers have been forced to raise premiums “as a direct result of the health overhaul.” Of course it wasn’t supposed to be this way. Obamacare was going to reduce premiums, not raise them. That’s what the president pitched to insurance providers, who were highly concerned about the fallout of higher premiums on their customer base. “We [Senate Democrats and the administration] agree on reforms that will finally reduce the costs of health care. Families will save on their premiums.” The principle justification for the president’s claim regarding shrinking premiums depended upon an expanded insurance market that would result from the individual mandate. Instead, the law has had the exact opposite effect on premiums, with devastating consequences. Meanwhile, the Department of Health and Human Services has issued hundreds of waivers to companies so they could be saved from the Obamacare legislative “fix.” Now, we’re told that an astonishing 733 companies and politically connected unions at last count threatened to drop their health care coverage for employees altogether if they did not receive a reprieve from the law. Obama’s claims about his health reform law were bold. The law would fix all of our health care woes, he promised, efficiently and cost-effectively. But the law has only roiled the health insurance market and lent uncertainty to many Americans’ health care. Congress should declare a moratorium on the health care reform law until the courts can settle the issue of its linchpin — the individual mandate. Even supporters of Obamacare, perhaps even Obama himself, might concede that the law won’t work as intended until the courts settle the core constitutional issues. What harm would there be in placing Obamacare on hold? Certainly no American should be paying the higher prices for a health care plan now that could very easily, in the end, disappear with a strike of a judge’s gavel.

While we do not know the ultimate fate of Obamacare in the courts, as we saw on Monday, the future of the law is very much in doubt. If, in the meantime, you think an Obamacare moratorium is warranted, feel free to push the idea in letters to your local newspaper, with your personal networks, and especially with your elected representatives.

New Docs: Obama Justice Colluded with ACLU to Attack Arizona’s SB 1070

You may recall that JW is involved in an investigation of the Obama Justice Department’s (DOJ) legal assault on SB 1070, Arizona’s get-tough immigration law. Well, we recently received documents from the Department of Justice that confirmed our suspicions: Justice has been working hand-in-hand with the radical leftist American Civil Liberties Union (ACLU) in mounting their respective legal challenges to the law.

These documents, obtained through a June 17, 2010, Freedom of Information Act (FOIA) request, include email exchanges between DOJ officials and ACLU staff. And I think when you read them for yourself you’ll see how difficult it is to tell where the ACLU ends and the DOJ begins.

For example, check out this July 27, 2010, email exchange between Lucas Guttentag, leader of the ACLU’s Immigrants’ Rights Project and the DOJ’s Deputy Solicitor General Edwin Kneedler:

2:15 pm: Ed

I left a voicemail earlier today about checking in once the district court rules. Would you be available then?

[Redacted statement] And from all of us, thank you again for your argument on behalf of the United States.

Lucas 2:40 pm: Thanks Lucas. We should definitely check in once we hear. We’ll be huddling here as soon as we can. What is your thinking at this point on if/how you will proceed in various possible scenarios?

It was good to see you, even if only briefly, and to be on the same side for once! [Redacted statement] I have a feeling we might be seeing each other again on this case.

Ed 6:14 pm: Thanks Ed. Yes, a real pleasure to be on the same side.

I think we will be strongly inclined to seek an immediate emergency injunction from the 9th Circuit…

Can you share your current thinking with regard to the various scenarios?

Best Lucas

I am sure you share my concerns about the nation’s highest law enforcement agency being “on the same side” as the ACLU.

The documents also include email exchanges between ACLU staff and Joshua Wilkenfeld, the Assistant U.S. Attorney who signed the government’s pleadings in the lawsuit, in which they exchanged hearing transcripts and established opportunities to discuss the case. For example, the documents included this July 16, 2010, email from Guttentag to Wilkenfeld:

Josh

…Yes, look forward to talking. I’m getting a fuller briefing on yesterday’s hearing later this morning (Calif. time) and then I am tied up for a short while. Would it work for you to talk at about 4.00 or 4.30p Eastern? If it’s okay with you, I’d like to include two colleagues. By the way, we tried to order a transcript yesterday but understand the US Attorney’s office already did. Can we get a copy directly from you when it’s available?

All best,

Lucas

Wilkenfeld sent the transcript later that day.

Although we did not know for certain that the Obama DOJ and the ACLU were in cahoots over this legal assault until we got our hands on these documents, there was reason for suspicion. After all, a draft of the lawsuit filed by the DOJ on July 6, 2010, against SB 1070 was described by Congressman Peter King (R-NY) as a “cut and paste” version of a class action lawsuit filed by the ACLU weeks earlier on May 17, 2010.

But while it is one thing to share the ACLU’s disrespect for the rule of law, it is quite another to collude with the organization on a litigation strategy against the State of Arizona.

The Obama DOJ is supposed to be an independent, nonpartisan law enforcement agency. I’m sure many Americans will be disturbed, though maybe not surprised, to find that Attorney General Eric Holder’s team is colluding with one of the most leftist organizations in the nation. We know whose “side” this Justice Department is on when it comes to the enforcement of our immigration laws.

You will recall that Judicial Watch represents Arizona State Senator (and now State Senate President) Russell Pearce in the Obama administration’s lawsuit challenging the Arizona law. State Senator Pearce was also our guest for an educational panel on illegal immigration that we held at the National Press Club on December 8, 2010. You may want to check out our video of the panel as we discussed in-depth a number of issues relevant to the Obama administration’s lawsuit.

Ohio Government Worker Who Smeared Joe the Plumber gets New Government Job

So what do you think the proper punishment should be for a government worker who invades the privacy of a citizen to help a political campaign? How about a brand new government job?!

According to the Columbus Dispatch:

A county agency has hired Ohio’s former social services director, who quit over a records check on the campaign figure known as “Joe the Plumber.” Helen Jones-Kelley resigned in December 2008 as director of the Ohio Department of Job and Family Services. That was after an investigation found she improperly used state computers to find personal information on Samuel J. Wurzelbacher of the Toledo area. Jones-Kelley was hired yesterday to lead the Montgomery County Drug Addiction & Mental Health Services Board. Board Vice Chairman Stan Eichenaur tells the Dayton Daily News that Jones-Kelley has acknowledged that mistakes were made.

Let’s take a quick look at those “mistakes” made by Jones-Kelly.

You likely remember the exchange between Mr. Wurzelbacher and then-presidential candidate Barack Obama on the campaign trail in 2008. Mr. Wurzelbacher, who was then an employee of a small plumbing business, asked Obama a question regarding the impact of his economic policies on small businesses.

Obama responded by saying, “It’s not that I want to punish your success; I just want to make sure that everybody who is behind you that they’ve got a chance at success, too. I think when you spread the wealth around, it’s good for everybody.”

Of course the exchange between Mr. Wurzelbacher and Obama was captured on tape and immediately ignited a media firestorm. It even found its way into the next presidential debate with numerous references to “Joe the Plumber.”

Now, Mr. Wurzelbacher didn’t ask to be famous. He didn’t set out to embarrass Barack Obama. All he did was ask a question of a political candidate, which is his right as an American citizen. And for this he paid dearly.

Just four days after Mr. Wurzelbacher questioned Obama, Jones-Kelley, then the Director of the Ohio Department of Job and Family Services, held a meeting with two other department officials and specifically discussed “Joe the Plumber.” Following the meeting, Jones-Kelley and two other officials authorized and instructed agency personnel to search confidential office databases to retrieve information about Mr. Wurzelbacher.

All three agency officials were supporters of Obama’s presidential campaign. In fact, in addition to making a personal $2,500 contribution to Senator Obama’s presidential campaign, Jones-Kelley provided names of numerous other potential high-dollar donors to the Obama campaign. She also volunteered to help arrange a campaign event for Obama’s wife, Michelle.

According to a subsequent investigation by the Ohio Inspector General there was “no legitimate agency function or purpose for checking on [Mr. Wurzelbacher’s] name through the [confidential databases] or for authorizing these searches,” which he labeled a “wrongful act.”

And the Inspector General went one step further with respect to Jones-Kelley, finding that she personally misused state resources to conduct political activities on behalf of Obama.

Jones-Kelley was suspended without pay, and then she resigned her position in shame. Now she’s on the taxpayer dole again with a plum new government job and all of the attendant benefits (and powers).

Judicial Watch filed a lawsuit on behalf of Mr. Wurzelbacher against Jones-Kelley and her co-conspirators, claiming that these searches violated his constitutional rights. Unfortunately, the U.S. District Court for the Southern District of Ohio didn’t see it that way and dismissed our lawsuit in a ruling issued August 4, 2010. Here’s the statement I offered to the press in response:

The implications of this court decision are frightening. Essentially the court has said that government officials can feel free to rifle through the private files of citizens without fear of being held accountable in court. How can the American people feel comfortable exercising their First Amendment rights when they may be subject to secret searches by politicized bureaucrats in return? It is unconscionable that high-ranking state officials pried into confidential government files to punish Joe Wurzelbacher for asking a simple question. Justice was not served with this decision. Judicial Watch will most certainly file an appeal on behalf of Mr. Wurzelbacher.

We quickly appealed that court ruling and should hear later this year from the appellate court. Joe’s life was turned upside down by Jones-Kelley and her co-conspirators. What a stain on the State of Ohio, and especially on Montgomery County, that she is once again on the public payroll.

Until next week…



Tom Fitton

President

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