I’ve remarked on this before but I think it’s worth talking about again. There are several different ideas out there about what “the rule of law” means. Stating them in their most extreme versions one might be thought of as a rules-based regime and the other as a discretion-based regime.
In a discretion-based regime a law serves as a place marker, a statement of intent. The practical, day-to-day details are worked out by benign and capable administrators.
In a rules-based regime a law is a statement of actions that are required or forbidden and the penalties for violation. Any issue not addressed by the law is at the discretion of the individual.
To those who think of laws in terms of a discretion-based regime a rules-based regime is simultaneously too rigid and too chaotic. To those who think of laws in terms of a rules-based system a discretion-based regime is arbitrary and potentially tyrannical.
In practice our system has some of both. We have a common law system so most of our law has been created by judges, the “benign and capable administrators” above, presumably according to a set of principles, a system of meta-law. However, because we have a common law system there is no presumption that everything falls within the circle of the law.
The law means something, or it doesn’t. If the chief law enforcement officer of the country decides that he will enforce some laws when he wants to, and won’t enforce others because he doesn’t want to, that is not rule of law. That is the capricious rule of one man, and that makes him no better than any old chief of some savage tribe, or any modern dictator.
Obama has promised today that he will not prosecute those who violate certain provisions of his signature piece of legislation. Who is to hold him to that promise? What if he decides that he will prosecute those companies in violation, those whose owners and managers did not give him enough money last year? But those that did get a free pass? We’re supposed to take him at his word when he lies over and over again? “If you like your plan you can keep it. Period.” “Uh, that’s not what I really said.” We’re supposed to take the word of a man that uses the IRS as his own personal campaign organization? A man who will send out his minions to lie to the people about any and all issues of the day? (“It was all about a YouTube video!”)
Is there any law that this President does feel needs to be enforced as written, as opposed to be enforced as he feels about it today based on how well his breakfast is sitting and how he can use it for his own personal aggrandizement?
Whatever. You voted for this, I didn’t.
I was wondering what this post was really about.
[Discretion] I think the President has discretion to not enforce laws, but this has been traditionally a case-by-case determination.
[Trust] Blanket discretion can be confusing and misleading since it appears that the executive is binding itself, but the President is under no legal obligation to keep his promise. The insurance company lawyers are nervously informing the executives of this fact. But as a practical matter, the President would be insane to break any promises _clearly_ given in writing.
[People Not at the Table] I do not know much about ERISA, but I’m pretty sure its requirements result in lawsuits brought by states and individuals, not just the feds. If Insurance Company A has complied with ERISA as written and sees a monetary advantage in continuing to do so, can it sue Insurance Company B under ERISA for violating the express terms?
As I read this thing, insurance companies don’t have to take up the President’s offer, and its hard for me to see that they necessarily would. Since this is being offered as a one-year opportunity, don’t the insurance companies have to believe that its certain they will make more profits in a year than the expenses of continuing? Over a short period, there is a significant loss risk, right?
This comment is off topic and really goes back to Dave’s post about inventions. I had airport time last week so bought the Atlantic mag and read the article. Some may say this is nitpicking but……..
They describe the Bessemer process as “laying the groundwork for modern industry.” Not quite. More relevant is that you could mass produce steel rail, and railroad engines. Now you can transport people and goods not by boat or horse, but railroads; fast and in mass quantities. Second, you can mass produce structural (“I”) beams. Now you can make ginormous bridges and tall buildings. Later, you can make cars.
It was really about transportation and high density construction….. read: cities that wouldn’t burn up, for those of us in Chicago.
But as a practical matter, the President would be insane to break any promises _clearly_ given in writing.
Please define “clearly” and “writing”. Also the word “promise”, as it seems to mean something different to Obama than it does to most people.
And how is this promise any different than his promises that “if you like your plan you can keep it”?
Not to mention, should something happen to him in the next 13 months and Biden becomes President, what is to stop Biden from “violating” Obama’s “pledge” and prosecuting those not following the letter of the law? There is a reason, after all, for codifying these things.
Also, I am wondering: Does the President changing the law willy-nilly like this* a few weeks before the next year constitute business uncertainty?
* And don’t forget that about five weeks ago ANY change or delay to any part of the ObamaCare program (that hadn’t ALREADY been delayed by the President, that is) was considered to be an idea so heinous that the President called those proposing such ideas arsonists and terrorists. My, things change so quickly here! Obama as Red Queen….
Ellipses: I was thinking of the marijuana non-enforcement letter that clearly had weasel-words in them that recognized that prosecutions would take place in certain cases. Pot-heads apparently didn’t read the letter too closely.
Pot-heads apparently didn’t read the letter too closely.
Would it have mattered if they did?!
Bob Laszewski, president of Health Policy & Strategy Assoc., has commented a lot on the evolving twists and turns of the PPACA. Today, he ruefully questioned how the Obama administration couldn’t get a web site to function properly in 3 1/2 years time, but is now expecting insurance companies to “turn on a dime,” in rectifying all these cancellations, he’s throwing over to them, in 31 days.
What makes this law, and those pushing it, seem more and more out of step with reality is their messaging of “do as I say not as I do.”
PD, I am asking two serious questions:
1) Is there anything holding Obama to his promise to not prosecute companies and individuals that violate the law?
2) Would any pledge Obama made as President be enforceable upon his successor should Obama leave office and Biden assume the Presidency in the next 13 months?
Actually, that brings to mind another question. What would be the statute of limitations for companies and individuals should they violate the letter of the law as Obama indicates? If it were five years, could the next President decide to prosecute in 2017 for violations that took place in 2014?
jan, they simply don’t care about reality. Reality is something to be handled by underlings. Really important people don’t do reality. Why, sometimes Obama believes as many as six impossible things before breakfast!
#Obama=RedQueen
* And don’t forget that about five weeks ago ANY change or delay to any part of the ObamaCare program (that hadn’t ALREADY been delayed by the President, that is) was considered to be an idea so heinous that the President called those proposing such ideas arsonists and terrorists. My, things change so quickly here! Obama as Red Queen….
Icepick,
Oh the irony…but, when it’s republicans involved, there is no moral equivalency applied, as they have no morality — at least according to the practitioners of social progressivism.
This move by the president isn’t substantive. It’s a rather desperate stab at blame-shifting. Now rather than the president accepting blame himself or the Congressional Democrats accepting blame they can blame insurance companies.
Just for the record I’m on the “rules regime” side. However, I recognize that a lot of other people don’t see it that way. And quite a number of them are working in the Obama Administration or sitting in Congress.
But to think, someone in the comment section of this here blog told me in November or December of 2008 that Obama was going to usher in The Age of Competency!
jan, they simply don’t care about reality.
Icepick,
…..at least not the reality that most people experience. It’s all about theories, mystical equality, nuanced empathy for the masses, while not really addressing the masses in their every-day life quandaries, with solutions that actually improve these quandaries. Just look at the plight of AA’s under Obama. It’s only gotten worse!
Ellipses:
1) Legally, the question is what is an insurance company’s remedy if Obama violates his word. The answer is none, but impeachment. Also, as a practical matter, violations of statutes usually entail an assessment of a penalty by a judge, or someone responsive to a judge. Its hard to conceive of a penalty being imposed, the punishment would be the litigation.
2) Obama is not even bound by his pledge. He could write another letter next week, retracting this one.
When Obama took office, he signed an executive order forbidding those in the executive branch from using waterboarding. I’ve pointed out several times, that this was a discretionary act, not a rule of law. Obama didn’t have to enforce it, he could retract it, and he could hide the retraction, or his successor could repeal it. That he won’t is either because he believes what he wrote and/or there would be a severe political price to pay for waterboarding.
I see I’m not the only one who sees the president’s announcement this way.
Today Zerohedge filled out the obamacare law in greater detail, including explaining the implications of it’s internal construction and allowances/leeway given to unelected others in the quirky ways this law is unfolding itself:
In other words, the president has become the ringmaster in deciding what particular action violates the law enough to warrant punitive consequences. It’s just another example of his picking and choosing everything from ‘government investments,’ delays from mandates, voter ID or state immigration laws, F & F, NSA, reporter privilege trespasses, and which laws to prosecute….or not.
I see I’m not the only one who sees the president’s announcement this way.
Join the group, Dave. Look at the last two comments on the prior thread — The “Pottery Barn Rule.”
jan, my point in this post is that there’s a significant number of people who think that the sorts of judgment calls the president has been making are exactly what he’s hired to do. I disagree, thinking it’s Congress’s call but that doesn’t mean that a lot of people don’t sincerely believe it.
Remember we’re in the minority of countries in having the kind of civil law and government we do.
What should the Executive branch do when Congress is dysfunctional?
Steve
Dave,
With a layperson’s understanding as a basis for my POV, I continue to wonder how these judgment calls can be so arbitrary, rather than having actual, indelible perimeters in place everyone would have to follow — no matter what political party they represented.
What should the Executive branch do when Congress is dysfunctional?
And what guru is supposed to give the Dx of Congress being dysfunctional? Couldn’t it be the other way around, depending on whom was appraising the situation –that it was indeed the executive branch that was caught in an overreach, with conduct contrary to the enumerable powers given them under the Constitution?
What should Congress do when the President is this inept?
@Dave, I would rather assume Obama is trying to head-off more irresponsible legislation with something more innocuous. Going after the insurance companies, whose cooperation is necessary in this set-up, is a bad sign.
God forgive me, but even Biden would do a better job than Obama is doing.
I will note that steve is attempting to shift the focus to Congress, when the problems of the moment are solely those of an incompetent President. Congress does not have executive authority in our government, the President does.
Going after the insurance companies, whose cooperation is necessary in this set-up, is a bad sign.
You’re right, PD. But, in a deal going south, people start to give each other up, in their own desperation to save themselves, completely preempting the working ‘relationship’ aspect nurtured in the earlier stages of the president/insurance industry alliances.
Just a quibble:
“This doesn’t change anything other than force insurers to be the political flack jackets for the administration,†says an insider.”
That should be flak jacket. A flack jacket is what Jay Carney wears at his briefings.
jan (quoting): “That doesn’t work either, though, because the Constitution requires that tax laws originate in the House of Representatives, and Obamacare began in the Senate.”
That is incorrect. The PPACA originated in the House, as sponsored by Charlie Rangel. The Senate passed its own bill as an amendment to the House bill. The House *agreed* to these amendments, enrolling the bill.
jan (quoting): “Keep in mind what these delays really are—they are not new laws, or amendments to the law…they are orders from the President to his subordinates to simply not enforce laws that are on the books. ”
The president “shall take care that the laws be faithfully executed.†However, under the Administrative Procedure Act of 1946, the Congress gave the executive discretion in setting up laws, while holding it accountable for carrying out Congress’s intentions. It’s clear the administration intends to execute the law, so any delay would likely be seen by the courts as a proper use of discretion, unless it were prolonged.
Sponsor: Rep Rangel, Charles B. [NY-15] (introduced 9/17/2009)
http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.3590:
Zachriel,
Another slay of hand by the President’s men regarding the “origination” of the PPACA. From your own link, the bottom paragraph says it all:
Also, Andrew McCarthy has done quite a bit of research on the Origination Clause issue, coming up with the following argument:
The bill was unrelated — underline that fact. However,the language of it was gutted in the Senate, completely replaced with HC verbiage causing it to technically slide by as a “House Bill,” in order to stay within Constitutional guidelines. I think that’s not only disingenuous, but also sets up a dangerous precedent for future gimmicks to sail past provisions set by the Constitutional law.
As for your second ‘quote’ — the President goes it alone in his decisions. You can parse his circumvention of Congress by citing a 1946 Procedure Act, as giving him proper ‘discretion’ in choosing to either delay or not to delay, regarding setting up a law according to the intentions of Congress. But this can be seen as a very arbitrarily executed kind of discretionary usage of the law. Obama pushes the envelop, time and time again in exerting his unilateral-type of executive authority, rather than obliging the Congress and engaging in a more bipartisan collaboration that might have less confrontational outcomes. The only diversion from this ambitious executive pattern was the Syrian red line embarrassment, where he congenially sought out Congress to share whatever the dubious outcome might be.
BTW, as a technical correction — the quotes you used were not mine, but were excerpts from Zerohedge which I stipulated at the very beginning of my comments.
“I will note that steve is attempting to shift the focus to Congress”
I will note that steve is responding to Dave’s comment.
” I disagree, thinking it’s Congress’s call but that doesn’t mean that a lot of people don’t sincerely believe it.”
As the kids say, read FTW.
“Couldn’t it be the other way around”
No matter how bad Obama’s ratings, Congress ranks lower. Their unfavorables are in the single digits. That means even most conservatives have problems with Congress. If you want to make a case that Congress really is functional, have at it. You have little company.
Steve
Steve,
It appears you will defend the HC law…forever. No matter how many people are negatively effected, no matter how deceptively this law was marketed or pushed by the dems — it’s always the means justifying the ends when it comes to democratic goals of ‘equal for all.’
You also keep justifying Obamacare because of Heritage’s initial curiosity and experimentation with mandates — something they eventually scrubbed. You continue to mirror Romney’s MA HC law and say that Obamacare was patterned after it. But, that’s such a blanket misrepresentation, by promoting it’s core principles while overlooking important details and it’s state application that differ. For instance, Romney supported a HC law with no employer mandate — something overruled by MA’s 85% democratic legislature. There were other contingencies in his plan, forwarded over to the State legislature, that were also overruled. In the end, he signed a bill that was distilled down with democratic flavors, because that’s all he could accomplish, against such lopsided party odds. Romney’s plan was basically structured for one denim blue state, not tailored to be a national copy-cat. And, while it continues to have fairly high approval in MA, it didn’t manage to keep costs down, nor have the ability to create timely doctor appointments.
You also pit R plans against D plans, saying the former had no ideas for HC reform, and so we should take the plan that is before us, being the PPACA. But, as they say in 12-step programs, “When you don’t know what to do, it’s better to do nothing.” I think this is so applicable to the existing HC reform we have before us, as it is proving to create so much havoc in so many people’s lives, regarding their ability to stay with plans they customized for themselves and liked, as well as changing the job market to part time, in order for employers to avoid the rigors and costs of Obamacare. IOW, sometimes it’s better to wait for something better to come along, rather than take a substandard HC bill, keep on justifying it, just because it was the only one available — the unnecessary consequences being changes that invoke so much suffering among innocent people.
jan: From your own link, the bottom paragraph says it all:
Not from our link. Regardless, as a legal matter, the bill originated in the House. It was amended in the Senate. The House *accepted* those amendments.
jan (quoting): “They do this because the Constitution requires all revenue bills to start in the House, and their health reform plan involves revenue. So they have chosen to work off of a bill that started in the House, even if that bill is unrelated”
That’s right. They used the House bill as a vehicle. The House accepted the Senate amendments, properly enrolling the bill.
jan (quoting): “The bill was unrelated — underline that fact. However,the language of it was gutted in the Senate, completely replaced with HC verbiage causing it to technically slide by as a “House Bill,†in order to stay within Constitutional guidelines.”
That’s right, which contradicts your previous claim.
jan: But this can be seen as a very arbitrarily executed kind of discretionary usage of the law.
Do you see yonder cloud that’s almost in shape of a camel?
jan: BTW, as a technical correction — the quotes you used were not mine, but were excerpts from Zerohedge which I stipulated at the very beginning of my comments.
As we noted above.
jan: You also pit R plans against D plans, saying the former had no ideas for HC reform, and so we should take the plan that is before us, being the PPACA.
Change is hard.
jan- There is no real R plan. They are presented when they are not in a position to pass them. If you are unwilling to spend a single iota of political capital to pass a bill, you dont have a plan. Any, and I do mean any, health reform bill will be subject to criticism after it is passed. There will always be buyers remorse. If you arent willing to risk that, and potentially lose an election, you arent serious.
Steve
Dave,
I take a more cynical view. There are precious few, especially among the political class, who subscribe to one interpretation or another as a matter of principle. Rather, it’s more an “ends justify the means” calculus and so questions about “rule of law” are secondary to achieving the political goal. This is particularly the case for partisans, but it’s also a natural human tendency to be more deferential to “your guy” in a position of power, or any action that would support your cause. These arguments are mainly based on the tactics of a present political fight, to be thrown away and forgotten when the next engagement comes around. There are so many examples of this when one compares the Bush and Obama years that I don’t think it’s even necessary to give examples.
There are very few, it seems to me, who actually care a great deal about process, how we get to a certain end and ensuring that process is legitimate.
Zachrie,
Ah, I totally get your drift now. Anything goes, as long as one can scrape under the limbo line. It’s a Wall street/Hedge Fund approach to politics, where all that matters is getting something done.
Basically I disagree with your way of doing business, Zachriel. McCarthy’s analysis of Clause Origination is far more justified and reasonable, IMO, over your glad-handing the clever, technical details accounting for the PPACA’s origination ‘fix.’ From my POV, though, taking a House number, changing it’s entire content (including what it was intended for), just to get by a Constitutional hurdle, is something I see as being ethically-challenged, which is why so many people don’t buy it.
Fundamentally, the PPACA was built on shale — from how it was constructed, explained to the public, passed, right up to it’s current shoddy, amateurish implementation. No wonder it’s falling apart!
I do concur, however, that “change is hard.” But, additionally, if that change doesn’t work, it will either be changed back or changed again.
Steve,
My point had nothing to do with ‘political risk’ in passing a bill, and everything to do with passing a quality bill, rather than a bad one, like the PPACA . IMO, we are going backwards, not forward with this reform.
The answer is none, but impeachment.
And since impeachment isn’t happening, the answer is none. So the insurance companies have no reason whatsoever to believe that the President, who has lied about his lies in this matter, should be trusted.
jan: Ah, I totally get your drift now. Anything goes, as long as one can scrape under the limbo line.
Didn’t say that either. The rule of law is essential to liberty and justice. If the bill is in violation of the Constitution, the courts are the appropriate forum.
jan: McCarthy’s analysis of Clause Origination is far more justified and reasonable, IMO, over your glad-handing the clever, technical details accounting for the PPACA’s origination ‘fix.’
If you make a legal argument based on the constitution, then yes, details matter.
jan: From my POV, though, taking a House number, changing it’s entire content (including what it was intended for), just to get by a Constitutional hurdle, is something I see as being ethically-challenged, which is why so many people don’t buy it.
The House didn’t have to accept the amendment. By accepting it they endorsed it. There is no ethical quandary involved.
jan: I do concur, however, that “change is hard.†But, additionally, if that change doesn’t work, it will either be changed back or changed again.
Sure. But any change is necessarily disruptive, as the rather modest changes in ObamaCare illustrate. Course corrections are the best way to implement change, but the U.S. legislative system tends to either-or politics.