Imagine for a moment that you are a small-business owner looking to hire a new employee. As tough as the economy has been, you’ve managed to put your firm on track to expand.

Now imagine facing a lawsuit for requiring perhaps one of the most basic qualifications for job applicants – a high school diploma. You don’t have to imagine that last part. It’s now an unfortunate reality thanks to guidance recently issued by the Equal Employment Opportunity Commission.

The “informal discussion letter” states that requiring a high-school diploma as a qualification for employment may violate the Americans with Disabilities Act, which the EEOC enforces. Therefore, an employer must prove a high school education is “job related and consistent with business necessity,” or face potential fines or lawsuits brought under ADA.

Employers should take note. Despite this being an “informal” letter, EEOC investigators and trial lawyers will undoubtedly use this to their advantage. It continues an unfortunate pattern of federal agencies quietly making policy and stepping up enforcement on small businesses for the slightest missteps.

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The National Right To Work (NRTW) joined by the National Federation of Independent Business (NFIB), and Coalition for a Democratic Workplace (CDW) took off the legal gloves and are forcing the Obama Administration to defend its unconstitutional appointments to the National Labor Relations Board (NLRB).   Some say that President Barack Obama is creating a serious constitutional crisis.

This is the first legal challenge regarding these NLRB Board appointees who Obama appointed without a U.S. Senate confirmation process; but, more are expected.

From the NRTW release:

Washington, DC (January 13, 2012) – Today, National Right to Work Foundation attorneys filed a motion in federal court challenging the legality of President Barack Obama’s recent purported recess appointments to the National Labor Relations Board (NLRB).

The legal challenge is part of a larger case attacking controversial new NLRB rules that require every employer to post incomplete information about employee rights online and in the workplace, even if they’ve never violated or been accused of breaking federal law. The NLRB’s posting rules do not require union officials to issue information about workers’ rights to refrain from union membership or opt out of union dues. Currently employers can only be required to post notices if the Board has ruled that a violation of labor law occurred.

The Foundation’s case has been consolidated with other legal challenges to the biased NLRB notice posting rules brought by the National Federation of Independent Business (NFIB), Coalition for a Democratic Workplace (CDW), and two small businesses. Those parties filed the joint motion today raising the issue of the NLRB’s lack of authority to implement the rule given the unprecedented recess appointments.

The new filings in the U.S. District Court for the District of Columbia case comes after NLRB lawyers notified the court that President Obama’s recent recess appointees were now parties in the ongoing legal battle. Under the U.S. Supreme Court’s New Process Steel decision, the NLRB needs three members to act. However three of the five current NLRB members were installed by unilateral Presidential appointment earlier this year, despite the fact that the Senate was not in a self-declared recess.

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From the Associated Press:

States and a business group opposed to President Barack Obama’s health care overhaul asked the Supreme Court on Wednesday for a speedy ruling that puts an end to the law aimed at extending insurance coverage to more than 30 million people.

The high court should strike down the entire law, not just the main requirement that individuals purchase insurance or pay a penalty beginning in 2014, their appeals said.

The filings, on behalf of 26 states and the National Federation of Independent Business, also said the justices should act before the 2012 presidential election because of uncertainty over costs and requirements.

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While the new Congress deliberates over ways to repeal or defund the Obama Administration’s “healthcare reform” law, twenty states and the National Federation of Independent Business (NFIB), have filed suit in federal court arguing that the law is unconstitutional and should be struck down immediately. This is the largest of several legal challenges to Obamacare across the country.

Lawyers for NFIB and the states will appear in a Pensacola, Florida federal court this Thursday, December 16th.  They will ask U.S. District Court Judge Roger Vinson to rule that the heart of the law – and “individual mandate” that obligates private citizens to obtain health insurance whether they want it or not – is unconstitutional.  NFIB and the states will accordingly ask that Judge Vinson to strike down Obamacare in its entirety.

The Constitution does not allow Congress to force Americans to purchase a product solely because they are alive and the federal government’s claim of such authority contradicts more than two hundred years of Supreme Court precedent.  Yet the individual mandate, which would obligate private citizens to obtain health insurance whether they want it or not, does just that.

Counsel for NFIB and the states will make the following arguments:

1) The Individual Mandate in Unconstitutional

Under the Commerce Clause of the U.S. Constitution, Congress has the power to regulate people when they engage in an economic activity that affects interstate commerce.

The Obama Administration argues that choosing not to purchase something (like a health insurance policy) is somehow an “activity” that affects the economy.  The federal government’s theory that a decision to do nothing is “activity” that may be regulated by Congress under the Commerce Clause is unprecedented. The Administration’s lawyers have been unable to identify a single pre-Obamacare decision upholding a law that forces a private individual to enter into a market for goods or services against their will.

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By Reps. Marsha Blackburn, Darrell Issa and Peter Roskam:

Last January, President Obama declared, “Jobs must be our number one focus in 2010.”

Since that time, more than 2.5 million Americans have lost their jobs and unemployment stands at 9.6%. Some focus. The President and his Democrat allies in Congress instead chose to unleash a torrent of bills that do anything but create jobs, like the so-called financial services reform bill that didn’t fix the real problem of government meddling in mortgages, and another round of “stimulus” spending that only deepened states’ addiction to Washington bailouts. Last week, Congressional Democrats canceled a vote on tax relief for all Americans until after the November elections, creating more economic uncertainty while delaying private sector job creation.

The primary job killer is the trillion-dollar folly of ObamaCare. The bill hits America’s struggling small businesses and their families with 2,801 pages of new taxes and complicated rules, creating a climate of hyper-regulation and uncertainty that the nation’s most important small business alliance – the National Federation of Independent Businesses –has called “death by a thousand cuts.”

Just a couple of those painful wounds: by 2018, self-employers and small firms will be hit by a $14.3 billion health insurance tax, while a projected $17 billion will be raised by taxing every business-to-business deal over $600. Washington insiders pushing ObamaCare appear to ignore these truths and clearly don’t understand the negative impact the law is already having on entrepreneurs.

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Just outside the DC Beltway, in Maryland’s sprawling first congressional district, an electoral battle is underway that exposes unique ideological fault lines beneath America’s political landscape.

The campaign pits freshman “Blue Dog” Democratic congressman Frank Kratovil in a rematch against Republican Dr. Andy Harris. Given the political tilt of the district, coupled with the Tea Party tsunami gathering force this year, one would think that this race should be a slam dunk for Harris.

A tall, affable family man, Harris is an anesthesiologist, Navy veteran, hardcore free-marketer, and constitutional conservative. By contrast, Kratovil, a former attorney, tries to portray himself as an “independent” who distances himself from Nancy Pelosi and the House Democratic majority. However, the Washington Post reports that “Frank Kratovil has voted with a majority of his Democratic colleagues 84.6% of the time during the current Congress.” Among his least popular votes since taking office: support for the “cash for clunkers” program, for the near-trillion-dollar “stimulus” spending orgy, and for the hugely expensive “cap-and-trade” energy bill. Plus, of course, his vote to elevate the widely reviled Pelosi to the Speaker’s position.

Yet, despite all that, a recent poll finds Harris holding only a statistically insignificant three-point lead over Kratovil. This, while other GOP candidates are faring much better even in usually “safe” Democratic districts.

What’s going on here?

One of the most infuriating spectacles this election season is supposedly “Republican,” “conservative,” and “pro-business” individuals and groups supporting entrenched liberal incumbents against free-market, limited-government challengers. For many special-interest “insiders,” even on the right, philosophical convictions are far less important than sharing a “seat at the table” with the politically powerful.

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That sound you hear is the White House’s credibility bubble bursting. CBS reported last week that 74 percent of Americans believe the Obama stimulus either damaged the economy or had no effect.

The wisdom of the crowd turns out to be true.

The White House boasts that the $862 billion Stimulus is performing like a well-oiled machine, ensuring that 3.5 million jobs have been “created or saved” because of it. At $246, 285.71 per job, that’s a hefty claim were it true. Since February of 2009 the U.S. economy lost a net 2.35 million jobs.

What is true is that the administration’s confidence-crushing economic policies are, according to National Federation of Independent Business Chief Economist Bill Dunkelberg, “scaring us to death”. What’s happened here is that a White House sorely lacking in private-sector experience has, for almost two years now, been broadcasting a clear message: “Business: beware.”

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Ways and Means Ranking Republican Dave Camp (R-MI) and Health Subcommittee Ranking Member Wally Herger (R-CA) today released a new road map that shows America’s small businesses and their employees how to calculate the so-called small business health care tax credit.

Small_business_tax_credit_path_flow

As the navigation tool shows, employers face a dizzying array of questions and formulas before determining if they are eligible for some, all or none of this credit.

“The health care law is going to drive up premiums even further and, as this road map shows, it provides virtually no help to small businesses,” said Camp.  “No wonder the nation’s leading small business organization is suing to overturn the law.  We need to repeal this law and replace it with health care reforms that lower costs for small businesses, families and taxpayers.”

Herger added, “Ronald Reagan once said that the most terrifying words in the English language are ‘I’m from the government and I’m here to help.’  It’s no surprise that the Democrats’ big-government health care law offers no real help for small businesses struggling with high health care costs.  In fact, at a time when our top priority should be to create jobs and get our economy back on track, this new law instead kills jobs and tells small business owners that it isn’t in their best interest to grow and prosper.  It’s time for Congress to get to work on repealing this destructive health overhaul and providing real tax relief and health care savings for America’s small businesses.”

The Ways and Means Republican document reaffirms concerns expressed by small business owners in an Associated Press article, FACT CHECK: Tax cut math doesn’t add up for some,  out this morning.

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President Obama is coming to Youngstown today to tout his administration’s recovery efforts, but its policies are only making matters worse in the Mahoning Valley.

While it’s encouraging that the factory in Youngstown that the president will visit on Tuesday has recently expanded, the city’s painfully high 15.1 percent unemployment rate is a harsh reminder that the “stimulus” has not created jobs “immediately,” or held our national unemployment rate (9.9 percent) below eight percent as the president promised.

Worse yet, the policies of the Obama Administration could quickly put jobs at the factory, which manufactures steel pipes for oil and gas drilling, on the chopping block as it continues to push a “cap-and-trade” national energy tax that will raise energy prices, drive thousands of American jobs overseas to countries with less-stringent environmental regulations, and devastate our domestic oil and gas industries.

Last December the administration unilaterally acted to pave the way for this bureaucratic nightmare, and it’s not looking back. In fact, last week the EPA finalized new rules for manufacturers and power plants scheduled to go into effect in January of next year, regulations that American Iron and Steel Institute President and CEO Thomas Gibson warns “will impose significant new costs on manufacturing industries at the worst possible time… [and] arbitrarily picks winners and losers.”

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A small business association called the American Small Business League (ASBL) did something unexpected this week.  ASBL President, Lloyd Chapman, decided to take the Obama Administration to court and expose the growing divergence between the Administration’s stated goals to meet the federal statutes for small business participation versus the Obama Administration’s total failure on federal, small business contracting.

By any measure, Obama’s record on federal, small business contracting has been abysmal.  The recent, National Federation of Independent Businesses (NFIB) Small Business Economic Trends Report confirms that “for small business owners, 2009 ended with a thud.”

Many factors have contributed to the disaster in small business contracting.   A rush to push the $787 billion Stimulus funding quickly gave federal contracting officers no real options other than to dump the additional federal money onto existing federal contracts that are held by the largest companies.  There just was not enough time to conduct procurements to encourage the participation of small businesses.  So, small businesses received very little of any of the new federal business or the loans anticipated from the $787 billion Stimulus spending, even though President Obama and Democrats in Congress stated that awards to small businesses were the primary goal.

Worse yet, Obama decided to delay the long-overdue need to increase the number of federal contracting officers that are in critical short supply.  Ten years ago, each federal contracting officer was responsible for an average of  $300 thousand dollars of federal contracts.   Today, each federal contracting officer is responsible for $50 million dollars in federal contracts.   Put bluntly, contracting officers have been stretched thinly and no longer have the time needed to open procurements to small businesses.

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In a recent post, I posited unemployment insurance should be reformed to offset the minimum wage for new small businesses hires.  Please continue in comments to help me brainstorm.

This is a “free stimulus,” because it uses current unemployment payments to actually create new jobs.  No tax cuts.  No deficit spending.   No new government program.  And only Main Street gets to use it.  When was the last time you heard something sane and immediate?

The Elevator Pitch

Example:  A company not currently making new $7.25 per hour hires, can bid $2 per hour and if no other employer in the area bids more, and have deeply discounted workers… with the government making up the difference to $7.25.

The discounted employment contract is for one month, so when a higher bid comes in, the current employer will have to meet the new pay.  If no higher bid comes in, the small business continues paying $2 per hour.  Highest bid wins.

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The definition of insanity is to keep doing the same thing over and over again and expect different outcomes.  The different versions of the jobs bills circulating in Washington DC these days are perfect example of that point.

See for instance, the  jobs tax credit for hiring new workers idea. What a brilliant example of bipartisan nonsense that is. Pushed by President Obama during his State of the Union address earlier this month and most recently picked up by Senators Schumer and Hatch.

Still no one seems to wonder, why would employers pay a new worker $40,000 to earn a $5,000 credit unless that worker generates at least $35,000 of revenue? Even when the advice comes from economists at the National Federation of Independent Businesses, the largest association of small business owners in the country, it is ignored by the President and Congress.

This about it this way:

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Poll after poll have recently affirmed that the ClimateGate revelations (I actually say “affirmations“) dealt a mortal blow to the public’s belief in the environmentalist brass ring of “catastrophic Man-made global warming.” The dishonesty exposed therein iced the cake for a public attentive to the increasingly shrill and absurd alarmist campaign, demonstrably cooler temperatures cool and the sky remaining precisely where we left it.

Troubled by such results, several green groups to rush out polls of their own, riddled with gauzy questions generally distilling to “wouldn’t you want to save the planet from destruction if you could get rich doing so?” I oversimplify, but not grossly. This week the National Wildlife Federation claimed two-thirds of Americans want federal limits on greenhouse gases! Surely a Congress desperate to do something popular will hop on board this train? Not likely.

The shocker from these forays is that a substantial number have so little regard for the alarmist claptrap that they’re willing to dismiss even loaded questions designed to elicit a positive response.

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Well, it’s hard to choose these days. The resurgence of Keynesian economics shows how fragile and insecure economists are in general. They are, of course, important exceptions. But while I have a special dark place in my economist heart for the New York Times‘ columnist Paul Krugman, I think today the prize should to economist Mark Zandi, of Moody’s Economy.com.

Zandi is constantly quoted in the media as the go-to-person on what do for the economy to recover. For instance, how many stories have we read in the Washington Post saying “nearly all economists support the stimulus,” with for only evidence a Zandi quote. Many. Who cares that Zandi’s model shows that the stimulus is working because the answer is built into the equations of Keynesian models. Here is a job for an economist: Take apart and demolish these reality-defying macro models once and for all.

The media loves him and as a result there are countless quotes of him out there about how we need more government intervention into the economy to jump start the economy, how passing the $800 billion stimulus bill would create jobs, how more spending programs are yet still needed.

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