As you know, Obama invoked his
imperial executive powers to delay the employer mandate for businesses with 50-99 employees. One aspect of it, however, has not caught much attention. In order to qualify for the exemption, businesses must certify, under penalty of perjury, that they did not cut down on employment to get under the 100 employee cap:
This week, the Obama administration finalized a regulation that delays enforcement of the employer mandate until 2015 for companies with 50 to 99 workers. Contained in the regulation was the clearest admission to date that Obamacare, and its employer mandate in particular, will indeed have a negative effect on jobs: To qualify for the delay, employers must certify that they haven’t reduced the number of workers in their company, or the total hours of service of its employees.
Put another way, if employers are going to take advantage of the one-year delay in enforcement of the employer mandate, they have to attest (under penalty of perjury) that they aren’t cutting jobs or reducing hours because of Obamacare. By pointing this out as a possibility — or an outcome to be avoided — the administration is acknowledging what it long denied: The law creates incentives for employers to cut hours and jobs.
Chen goes on to point out that this attestation of faith is purely political. Obama wants to be able to say that no business is cutting employees or hours to comply with Obamacare — and he has their own sworn statements to prove it!
Think about how lunatic this is. There is nothing even faintly illegal about businesses’ – indeed, all economic actors’ – making financial decisions based on tax consequences. (And remember, notwithstanding Obama’s misrepresentations to the contrary, Obamacare mandates are taxes – as Obama’s Justice Department argued and as Chief Justice Roberts & Co. concluded.) The tax consequences of Obamacare are profound – that is precisely the reason that Obama is “waiving” them. No responsible officers in a corporation of relevant size would fail to take them into account in making the decision to staff at over or under 100 employees; in determining whether some full-time employees should be terminated or shifted to part-time; or in making any number of the decisions Obamacare’s mind-numbing complexity requires.
The officers’ responsibility is to the owners of the company, the shareholders. The business exists to create value, not to provide employment – employing workers is a function of the value added to the enterprise, not the need to create a more favorable election environment for the statist political party. Corporate officers who overlooked material tax consequences would be unfit to be corporate officers.
What is illegal and irrational is not a company’s commonsense deliberation over its costs, it is Obama’s edict. And look what attends this one: criminal prosecution if Obama’s Justice Department decides the business has falsely certified that its staffing decision was not motivated by Obamacare.
Think about that for a second. The waiver is illegal. It flouts the language of the Obamacare statute, under which the employer mandate is required already to have been implemented by now. There is nothing in the law that empowers Obama to waive the mandate, much less to attach lawless conditions to such a lawless waiver. A business that seeks the waiver and fails to pay the mandated tax (in lieu of providing the required coverage) is in violation of federal statutory law, regardless of its compliance with Obama’s outlaw edict. The payments required by the statute, after all, are owed to the public, not to Obama – he’s got no authority to deprive the government of these funds just because it would harm Democrats to collect them.
I think the later point is very very important. Remember what I wrote a couple of weeks ago about Obama saying he won’t prosecute people who sell legal marijuana in Colorado and Washington? Obama is creating a system where people can be violate a stupid law but he will not prosecute them. For now. However, this waiver can be removed at any time at his pleasure. He invites companies to break the Obamacare law and then puts them at his mercy. Holder recently said banks could process funds for legal marijuana business but the banks are hesitant because they are not that stupid. They know the Feds could turn on them at any moment and seize all of their assets, claiming they are laundering drug money (and indeed, they would be, under federal law).
I realize that Congress is in a do-nothing mode. Having passed a budget and raised the debt ceiling, there are now rumbling that they are basically done with legislation for the year (note: they will still be paid as if they were legislating). Tax reform, immigration reform, Obamacare overhaul … all of these look like they will never happen. We have an absentee government.
Normally, that might not be such a bad thing. But we have a number of critical issues that need to be addressed. If Obama says he will waive Obamacare requirements for smaller businesses, Congress should pass a law (and remove the oath part). If Obama says we shouldn’t prosecute legal pot business, Congress should pass that into law. Without the protection of Congressional legislation codifying these things, everyone is at the President’s mercy.
Does anyone doubt there will be political games and favoritism in who is and isn’t prosecuted for violating the 100-employee rule? Does anyone doubt that political games and favoritism will play into which legal pot shops are prosecuted? Executive rule is arbitrary rule. It is no longer rule of law, it is the rule of man … a very specific man who has given little reason to believe he can be entrusted with that kind of discretionary power.
As I have said many times, this isn’t a partisan issue. Liberals shouldn’t want that kind of authority given to President Rubio in 2016. Congressional Democrats shouldn’t want their power usurped. Legal marijuana supporters shouldn’t want pot shops to be operating under the mercy of the President. Forget the letter next to the guy’s name. This is wrong and this is dangerous. It’s time to put a stop to it.
Meanwhile, businesses that qualify for the Obamacare waiver should refuse to take advantage of it. This will hurt and they will have to fire employees. But it’s better than swearing an oath that can’t possibly be true, violating a law passed by Congress and putting themselves at the mercy of the President.