Obama's New Unilateral Law: Making Businesses Sign a Loyalty Oath

When Gabe heard about this yesterday -- the Treasury's new claimed rule that businesses must sign a statement swearing they are not cutting their staff (or avoiding increasing their staff) in order to avoid Obamacare's disincentives for expanding your staff (that is, different Obamacare's strictures kick in at 50 or 100 employees) -- he had a simple question:

On what statutory authority Treasury is relying for the certification requirement? http://t.co/qK3kXzK4GK pic.twitter.com/gHS7TbNcYK — Gabriel Malor (@gabrielmalor) February 11, 2014



I suppose that's a quaint question now, isn't it? Gabe seems a naif for even asking it. We all now understand that Obama feels that any law he feels should be a law is a law, whether Congress has gone through the bother of passing a law or not.

Ed Morrissey discusses it himself, and also links Andy McCarthy discussing it.

Let's just cut the chase. Obama wants businesses to swear to this, under penalty of perjury, because he would like to use these statements -- whether true or false -- to argue that Obamacare is not causing reductions in hiring.

Note he has created a powerful coercive force to get businesses to lie on these things. A businessman, being asked by the Treasury to swear he's not reducing staff to avoid Obamacare, understands exactly what Treasury wants: Treasury wants him to claim this. If the businessman claims this, even if falsely, Treasury will leave him alone.

If a businessman decides to to tell the truth and say, "Why, actually, I am reducing staff to avoid Obamacare, as is my right," he can expect that Treasury will take an interest in him. An auditing interest.

It is thus in businessman's interest to perjure themselves, and Treasury would like them to perjure themselves.

The bad faith of this action is demonstrated by the fact that Treasury doesn't even ask a straight question about it. (Which they would also have no power to ask, by the way.) A straight question would be, "Have you refrained from making new hires, or have you cut staff, due to the incentives and disincentives of Obamacare?" Such a question would be more likely to lead to truthful answers (though any businessman with a grain of savviness would still understand what Treasury wants him to say, and adjust his answer accordingly).

But at least that formulation isn't so plainly constructed to force one answer, the answer that is politically helpful to Obama.

In addition, if Treasury merely wants to know the truth, they can employ a method more likely to produce candid answers: send out a survey form to 10,000 business owners, making answers voluntarily, and creating a special means of response that safeguards each respondent's identity, so they can feel comfortable speaking a truth that the IRS (while under Obama's control) might not like.

But they do not want a truthful answer. They want a specific answer, truthful or not.

Obama, using the power of the IRS, is thus now compelling private citizens to commit perjury in order to use those deliberately-elicited perjurious statements as part of his political campaign. He doesn't care if these Loyalty Oaths are true; but he does want the paperwork on record so he can point to it.

To get back to Gabe's question: What legal basis does the Treasury have for this? Demanding that a citizen or business sign a statement, on penalty of perjury, is a serious thing. Businessmen are under a great many laws already; Congress has passed these laws, however. They are constitutional laws (or, for those who object that they're nevertheless unconstitutional, at least they have the surface appearance of being constitutional, as they were passed by Congress and then signed into law by a President, as the Constitution requires).

What basis does the executive have for creating new laws? If Treasury can make people swear to this, can they also make people swear to not taking advantage of tax loopholes and preferences to reduce their tax burden?

For example: Can a Republican President direct Treasury to make businessmen swear that they are investing in tax breaks favored by liberals (such as green energy) out of actual support for those boondoggles, as opposed to simply wanting the big tax break for them?

This is lawless, and this is scary. And it just keeps on happening, day after day.

At some point the Supreme Court must step in and save our democracy. Whether or not Obamacare was "constitutional" as written, it is now unconstitutional as interpreted by President Obama. Obama is interpreting not as an actual law, with firm dates, specified strictures and duties, but as an illegal Enabling Act that simply transfers, unconstitutionally, the power of Congress to legislate to the Executive.

Even when Congress actually intends to do this, the Supreme Court has knocked down overbroad delegations of power to the Executive-- the Constitution requires Congress to pass laws, and the President to enforce them, and even a willing Congress cannot pass its power to the Executive. The Constitution forbids it.

Now Congress can pass some rule-making power and discretion to the Executive. However, there are limitations on that power:

In the 1989 case Mistretta v. United States,[6] the Court stated that: Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it "constitutionally sufficient" if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

Where can Obama point to in the tax codes or in Obamacare to say Congress has delineated this general policy, or named which Agency should execute it, or... even mentioned it at all?

In this situation, Congress is not even willing to transfer its constitutional power to the Executive. The Executive is simply asserting that it did, or at least, that this is what is "required" to save Obamacare.

A lawsuit must be lodged to declare Obamacare an unconstitutional delegation of lawmaking power to the executive, as interpreted and actually enforced by Obama.

Facially, Obamacare looks like a normal law. But in actual practice, it is, as Charles C.W. Cooke called it, an illegal, unconstitutional enabling act.

Poaching: If Obama is presuming to poach Congressional power, why doesn't the House of Representatives poach back?

Let the House pass a bill stating that no business has to comply with this, as it is unconstitutional.

Let them say further that their statement of intent on this matter shall be a perfect defense to all prosecutions or attempts of the executive to enforce the clause.

And let the House start doing more than that: Let the House pass a bill that in its opinion Obamacare is simply no longer the law of the land.

Now, Obama will object: One House of Congress has no right or authority to do this.

Oh?

Lot of that going 'round, huh?