Dr. Larry Kawa is about as far removed from the federal governing structure as any private citizen. But the Boca Raton orthodontist does have something in common with the U.S. House of Representatives.
Both see the Obama administration’s unilateral delay of the Affordable Care Act’s employer mandate as an abuse of executive power.
But while the Republican-led House weighs the efficacy of a push-back lawsuit against President Obama, Kawa has been duking it out in federal court for nearly a year.
His efforts seem to be paying off.
On Wednesday, the same day a House rules committee held a hearing on Capitol Hill about a proposed separation of powers lawsuit, a federal appeals court in Atlanta agreed to hear oral arguments in Kawa’s case.
The decision by the 11th U.S. Circuit Court of Appeals is a sign his legal challenge is being taken seriously, Kawa’s lawyers say. His case was dismissed by a lower court earlier this year for lack of standing, or the ability to show an actual injury.
A Florida judge ruled that because the employer mandate was delayed, and not canceled, the compliance costs Kawa incurred in preparing his business to meet the requirements of the mandate did not amount to an unlawful taking — even if he may have wasted significant resources. The same mandate would apply just one year later, the judge’s reasoning went.
Two things have changed since then. A federal court in Texas granted standing to Dr. Steven Hotze, founder of Hotze Health and Wellness Center. Hotze is also suing the administration on somewhat similar grounds. Plus, the Obama administration delayed the employer mandate for another year, now scheduled to effect Kawa Orthodontics in 2016.
Kawa said he’s likely to spend significant resources in anticipation of the mandate again.
In March 2013, Kawa spent $5,000 on legal fees and an additional 100 hours learning about the law, including meetings with insurance agents and his accountant.
“Delayed is the wrong word. The mandate was canceled for two years,” Kawa told Watchdog.org.
“The crux of our case is that the president has substituted his policy judgement for the policy judgement of Congress,” he said.
In other words, the employer mandate was expressly written into the health law and supposed to take effect January 1. For their own reasons, the administration delayed it — a potential material change of an act of Congress.
Judicial Watch, a conservative legal foundation, is representing Kawa.
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