**Posted by Phineas
As part of my post yesterday on Juan Domingo Obama’s latest and almost certainly illegal rewriting of the Affordable Care Act to delay the employer mandate for another year for businesses with 50-99 employees, I noted that the administration, with no supporting legislation, unilaterally created a felony. In a usurpation of congressional authority, Treasury is requiring businesses taking advantage of the waiver to attest that they are not letting employees go because of the waiver, under penalty of perjury.
To put it another way, the Obama administration is declaring it a federal crime to make a logical business decision if you do so to take advantage of illegal rules written by the Obama administration.
And you thought 1984 was fiction.
This would have Andrew McCarthy’s head spinning, too, except he’s too busy being outraged at the lawlessness of it all:
So now Obama, like a standard-issue leftist dictator, is complementing lawlessness with socialist irrationality.
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.
And, as McCarthy points out, if a company does take advantage of the waiver, regardless of the reason for doing so, it is in violation of the ACA as written, because the fine revenue is owed to the public, not the president. He has no authority forego its collection. Talk about being between the proverbial rock and a hard place: a company can pass on the waiver, even though it makes economic sense for them, thus breaking its fiduciary duty to its owners, or it could take advantage of it and face the threat of prosecution from two directions.
Heads you lose, tails you lose.
And so does the Rule of Law.
(Crossposted at Public Secrets)