Unspeakable Outrage: Obama Administration to Require Employers to “Attest” on Their Tax Forms That They Have Not Laid Off Workers to Avoid the ObamaCare Mandate
Fox News sure knows how to bury the lede. This passage is nine paragraphs into the article — a seemingly offhand comment in a story titled “Republicans renew ObamaCare battle after latest mandate delay”:
Some lawmakers, though, have claimed that the mere threat of the employer mandate is causing companies to shed full-time workers in the hope of keeping their staff size below 50 and avoiding the requirement.
Administration officials dispute that this is happening on any large scale. Further, Treasury officials said Monday that businesses will be told to “certify” that they are not shedding full-time workers simply to avoid the mandate. Officials said employers will be told to sign a “self-attestation” on their tax forms affirming this, under penalty of perjury.
Attest that you didn’t do something you have a right to do — and if you’re lying you go to jail. How about that?
Let’s be very clear about this. I feel confident in saying that there is no law in existence that prevents employers from laying off (or reducing the hours of) workers in order to avoid a burdensome federal regulation. I feel confident in saying this because if such an incredible intrusion into the management of small business were ever proposed, I think we would have heard about it. If I am wrong, and there is some small poisonous overlooked provision in ObamaCare or another law that imposes such a requirement, then this is an even bigger story than the one we’re currently looking at. I sincerely doubt it.
So take it as a given: the Obama administration says they will require employers to certify, under penalty of perjury, that they have not taken an action that they have every legal right to take.. This is a breathtaking abuse of power that deserves to be screamed from the rooftops of every home in the land. It should be a banner headline in every newspaper, not just a muttered afterthought in a mundane story about politics.
This bogus certification has at least two pernicious effects. First, it will cause some employers to believe that this is the law, even though it isn’t. Raise your hand if you can say that you have read every word of every law that pertains to employer responsibilities in this country. You guys with your hands up are all lying. Put those hands down and shut up and listen to me. If employers are forced to attest that they didn’t do something, many if not most will assume it was illegal to do what they did.
A QUICK ASIDE: This reminds me of the stunt that our wonderful Caliornia State Bar pulls on their membership fee forms. On the bill, which must be paid by every lawyer, they include in the printed total about $15 of contributions, which (you learn if you read the fine print) are actually voluntary and can be subtracted from the total. You can (and I always do) subtract those amounts from your total. But if you are not paying close attention, you may just write a check for the total amount on this bill, which after all, is mandatory for members of the bar. The only reason to structure the bill this way is to trick some lawyers into thinking that the contributions are mandatory when they aren’t. It’s nothing less than a fraud on State Bar members, perpetrated by the people entrusted to ensure that lawyers don’t defraud people. But these people have regulatory authority over me, so I had best not complain too loud, huh? Forget I said anything.
BACK TO THE POINT: Some people, of course, will not be fooled. Those people know that they have absolutely no obligation not to fire workers to avoid the mandate. But they are being asked to attest that they didn’t. What are the consequences of failing to sign this attestation? The story does not say, and legally, I can’t imagine there could be any. I have no doubt that some employers will refuse to sign the attestation, some will challenge it in court, and several years and thousands of dollars of legal bills later, they will win.
But in the meantime, what consequences will there be for failing to sign the illegal attestation? I don’t know, but I know this:
THOSE TAX RETURNS ARE GOING TO BE PUT IN A DIFFERENT PILE.
Beyond that, I don’t know what will happen. The people who refuse to attest to something they have no obligation to attest to may not be arrested. They may not pay fines. They may not be audited at a higher rate. (Raise your hand if you believe that. I see no hands.) But we know that their return will go in a different pile.
Because, why else ask the question?
I guess this may be the first in a glorious parade of new attestations we will all have to sign. Just imagine the possibilities. “I certify under penalty of perjury that I am paying each woman in my company the same salary that I pay the men.” “I certify under penalty of perjury that I am spending my company’s profits on hiring as many additional workers as possible.” “I certify under penalty of perjury that I am paying my workers the highest possible wage I can afford.”
I think I will start a new shtick on this blog, where I refer to Obama having people certify things on their tax forms that he just kind of feels like having them attest to. When I do that, I will include a link to this post. The gimmick is designed to raise awareness of this outrage in some small way. Because nine paragraphs into a boring political story from one news outlet does not cut it.
UPDATE: Commenter DF specifies the consequences for failing to sign the illegal attestation: employers can’t take advantage of the illegal delay of the mandate.
Sign this thing we can’t legally ask you to sign, or we will not give you the break we have no right to give, but that we will give anyway to people who do sign.