Obama Silences Critics With the IRS

By Betsy McCaughey, Ph.D., CP Op-Ed Contributor Thursday, February 20, 2014

President Obama is using the Internal Revenue Service to silence employers unhappy about Obamacare. That's the hidden purpose behind the employer mandate delay announced on February 10th.

The administration released 227 pages of mind-numbing regulations ridiculously billed as making " the compliance process simpler and easier" for employers. Hidden in the gobbledy-gook (on pages 125-6) is a requirement that employers sign a statement to the IRS, meaning under penalty of perjury, that they have not reduced the number of employees or cut hours to shield themselves from the costs of Obamacare.

The administration called it a mandate delay. Nonsense. The delay applies only to a miniscule fraction of mid-size employers (50-99 full time workers) who currently don't provide coverage. They're mostly in retail and hospitality, and they will be allowed to continue not offering it. Their workers (about 1.9 million) plus dependents will either stay uninsured or sign up with Obamacare. The administration is hoping for the latter.

But nine out of every ten mid-size employers already provide coverage, and for them last Monday's announcement was about hush money, not delay. They are required to continue to provide coverage, and worse, most will have to switch to the costlier Obamacare package of benefits, because that's the only plan for sale. Either state insurance regulators or insurance companies have already said no to renewing noncompliant plans.

The only thing these employers get from last week's rule change is a "stop complaining" bribe. The Affordable Care Act says employers have to pay a whopping $3,000 each time a worker goes onto the Obama exchanges and gets a taxpayer subsidized plan. Now the administration is offering to waive that penalty. Employers who want this deal must attest to the IRS that they haven't laid off workers or cut hours to squeeze under the 99-worker threshold.

Here's where Big Brother starts running your business. The IRS will forgive changes "because of the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes." It's none of Big Brother's business why you hire or fire.

The president wants employers to keep quiet before the 2014 election. In 2013, the headlines screamed about layoffs and reduced hours as CEOs and managers strategically maneuvered to minimize the cost of the employer mandate.

Astoundingly, in the first seven months of 2013, 77 percent of new hires were part time. Obama rushed to stop the damaging news by announcing last July that he would delay the employer mandate until January 1, 2015. Oops! That date is approaching.

Democrats running for re-election this fall are desperate to avoid similar headlines. This time, instead of the president offering employers a delay, he is offering most of them a bribe to keep quiet. Once employers swear that they have not cut hours due to Obamacare, how can they speak out about the law's harm to their business?

The new rule criminalizes something Congress has not made a crime, and federal courts say businesses can do. Federal court judge Learned Hand observed in 1934 (Helvering v. Gregory dicta) that "Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes."

Deceit is the primary motive behind the newly announced regulation. On page 36, it states that although employers are distressed that the law defines 30 hours as full time job requiring insurance, nothing can be done because the statute expressly states 30 hours. What-this is the only part of the statute the administration won't change by fiat?

Obama's rule writers are lying and laughing, as they concoct these regulations.

None of this is being done to redress legitimate concerns of business. Obama is enlarging the powers of the IRS to silence critics, whether it's the Tea Party or businesses struggling to stay in the black. Say good-bye to fair elections.

Betsy McCaughey is a constitutional scholar, a patient advocate and health policy expert, and a former Lt. Governor of New York state. She is the founding Chairman of the Committee to Reduce Infection Deaths (also known as RID), a nationwide educational campaign to stop hospital-acquired infections. She is the author of over three hundred scholarly and popular articles, and three books, including a history of the U.S. Constitution. McCaughey can be followed @Betsy_McCaughey and www.betsymccaughey.com