Three days after Treasury announced that businesses would have to certify under penalty of perjury that their staffing changes have nothing to do with ObamaCare, we have yet to hear one legal justification for such a demand. Yesterday, NRO’s Andy McCarthy, a former federal prosecutor, called this “lunatic,” and “adding irrationality to lawlessness” as Obama’s arbitrary treatments of the law collide:

Obama’s central command policies are inevitably crashing into each other. The waiver may provide some relief to endangered Democrats, but it also gives employers an incentive to lay off employees in order to get under 100 and qualify for the illegal waiver. So Obama has unilaterally legislated illegal conditions on the illegal waiver. To wit, employers will be required to certify to the IRS,under penalty of perjury, that the waiver was not a motivating factor in the company’s hiring and firing decisions. As Fox News’s Chris Stirewalt quips, “To avoidObamaCare costs you must swear that you are not trying to avoid ObamaCarecosts.”

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.

In my column at The Fiscal Times, I call this an expression of impotence — and hypocrisy:

The Obama administration declined to specify exactly why this warning went out in the first place. It became necessary because employers have discovered just how much cost Obamacare will add to their ledgers. Democrats who pushed the employer mandate insisted at the time that businesses would find that the law bent the cost curve downward and would welcome its impact.

Instead, skyrocketing premiums and taxes have created a big jump in personnel costs (AOL CEO Tim Armstrong estimated it at $7 million annually), which employers will have to resolve either through staffing reductions, downward adjustments in compensation, or higher prices.

Small wonder, then, that the White House pushed the mandate enforcement deadline out even further for mid-sized employers. President Obama himself said that he wanted to keep businesses from dealing with the real-world consequences of the law. “Even with the tax credits,” Obama told reporters in a press conference, “in some cases they still can’t afford it, and we have hardship exemptions, phase-ins, to make sure that nobody is unnecessarily burdened.” …

Furthermore, the sudden demand that businesses stop adjusting for regulatory policy is nearly the height of hypocrisy for this administration, which has repeatedly offered short-term gimmicky tax credits for business decisions that boost its policies, including an ill-considered credit for hiring that ended up costing taxpayers millions for hiring decisions that would have been made anyway. Suddenly, the Obama administration has to take action outside of the law because employers respond to regulatory signals more predictably than one-off credits.

In other words, it’s a demonstration of arbitrary power, of precisely the kind predicted by Hayek. And it’s no longer just opponents of the ACA noticing.

James Taranto called it “OmertàCare” in yesterday’s Best of the Web:

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if “the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition”–that is, if it doesn’t fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as 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 unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.Legal or regulatory changes that affect the cost of labor would fall into the category of “changes in the economic marketplace in which the employer operates.” So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can’t be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban–under threat of criminal liability–on acknowledging the perverse incentive. Call it OmertàCare, a government-imposed conspiracy of silence.

In other words, the legal justification for this “self-attestation” springs from an illegal action by the Obama administration, as a means to include the company in the increasingly-arbitrary application of regulation based on ignoring the statutes of the law itself. It’s lawless lunacy, certainly. But as I argued in my column, that’s precisely the outcome predicted by Hayek in The Road to Serfdom.

Jason Pye wraps it up:

The law clearly states that the employer mandate was to take effect at the beginning of 2014. The administration delayed it for a year because of thenegative headlines. Now, with Democrats’ control of the Senate on the line, the administration delayed it again.

Not only does the law say that the employer mandate was supposed to take effect, there is absolutely no authority anywhere in its text to require an employer to meet this completely arbitrary criteria.

So rather than be honest about the effect that the mandate is having on employers and their workers, the administration wants to put business owners in the tough position of doing something they financially may not be able to afford or lie to a powerful federal agency. That makes no sense at all.

Just like OmertàCare.