Wednesday, January 29, 2014

PPACA - governing arbitrarily rather than lawfully.

Via the indispensable Overlawyered comes  this article published in the Journal Regulation:

You’ll find it well worthwhile to read the entire article, but here are its concluding paragraphs:

"In his classic 1964 book The Morality of Law, Harvard legal philosopher Lon Fuller listed several criteria that mark the break-down of the rule of law. They include the lack of rules, leading to inconsistent decisions; rules that are secret or unintelligible; the use of retroactive legislation; commands requiring citizens to do the impossible; edicts that change unpredictably; and a gap between the rules and the way government actually operates. A society suffering from those maladies is likely to be governed arbitrarily, rather than lawfully.

"Sadly, even in its early stages, PPACA already manifests many of those symptoms.  It left many crucial terms unexplained; even “minimum essential coverage”—i.e., what kind of insurance the law requires Americans to purchase—was left for HHS bureaucrats to define later, outside the reach of the ballot box. The employer mandate was unilaterally extended by administrative fiat beyond the statute’s clear command—yet Republican demands for a similar extension of the individual mandate were turned away, only to be granted in a modified form weeks later when proved a failure.

"Those and other aspects of the legislation’s halting and unpredictable implementation reveal serious flaws in PPACA. But they also demonstrate a deeper crisis.
"In the pursuit of progressive goals, the Obama administration and its congressional allies have done long-lasting damage to a constitutional order that was meant to preserve individual liberty by cabining government power along clear, predictable, and democratically accountable lines."
Shall Americans accept such assaults on the Constitution and the rule of law, by following this increasingly tinpot President down the rabbit hole of unilateral government thru arbitrary enforcement and Executive Orders?  Sadly, this remains an open question.
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