Beyond "The Law of Averages"

I did a piece for the Toledo Free Press just a couple of weeks ago called "The Law of Averages".  In it I outlined a number of the different kinds of laws that members of a city council, a state legislature, or Congress can vote on. I thought that I had adequately covered the subject, but I was wrong.  Not normally prone to such admissions (except under torture), it's very hard and rather unusual for me to so quickly find fault with myself (see 'Signs of Ragnarok').  

In truly glaring fashion however, not only were there a couple legislative potentials that I missed, but my failures to definitively inform my readers have been rather glaringly pointed out in the news over the last week.  I have therefore decided (in true Catholic fashion) to confess my sins by citing my examples of this inadequacy, ask for forgiveness from you, and perform an act of contrition (yet to be determined).

Interestingly enough, two of the three examples of the failure I am about to cite do not involve the legislature at any level, but instead the Executive branch of government.  For while it's true that legislatures hold the power to create laws and Mayors, Governors, and Presidents hold a veto power.  Even that veto power can be overridden by a super-majority of law makers.  What cannot be overridden however is the executive branch at these levels simply telling those in change of a law enforcement to 'ignore' the law or regulation in question.

Take for example, the President's recent immigration initiative, which does not even rise to the level of an 'Executive Order', but merely an easing of enforcement of existing law.  And while many can say that this looks suspiciously like "The Dream Act", that was supported by the President, proposed as legislation, and which never passed both Houses of Congress; it's not.  

This 'policy' cannot be considered a law in any way, shape, or form; but is instead the nation's chief executive telling agencies under his authority to perform selective enforcement of laws legitimately passed by the national legislature.  These dictates will continue to hold force until the current or next chief executive sees fit to change them or Congress takes them up in session.  Some might consider such backdoor legislation arbitrary and extra-Constitutional; but unless enough legislators grow sufficient spine to challenge such practices, they hold as much force as any other legitimate legislation.

The second example of non-legislature legislation is the "Executive Order".  This is fact a legitimate ability of the chief executive at some levels of government.  The US President can, for example, issue Executive Orders which become law if unchallenged by the Congress within 30 days of the time they are issued (see the previous paragraph about spinal growth).  

Most of these Executive Orders are fairly innocuous and do little more than remove day-to-day details from Congressional consideration; with for example President Obama issuing one on May 21, 2012 'Providing an Order of Succession with the Department of Agriculture'.  (One can only imagine the chaos that might ensue if the Secretary of Agriculture were assassinated, and no one knew who should assume his authority.)   Others might be seen as a bit more overreaching, such as the establishment of the 'Global Development Council' on February 9, 2012 creating a special council on international trade; or the 'Adjustment of Certain Rates of Pay' order on December 19,2011 which allows the President to set pay scales for certain executive, legislative, and judicial positions.  But again, at least Congress has the right (if not often the will) to challenge Executive Orders and to pass laws they find more appropriate in their place.

(For those of you wondering who the President was who issued the most Executive orders, I can tell you that Reagan issued 380, Clinton 363, and George W Bush 291.  The big winner, not unexpectedly, is Franklin Delano Roosevelt; who from 1933 to 1945 issued an almost astounding 3,728.)

Now the final way to put laws into effect that I've been talking about are the 'regulations' put into effect by agencies full of un-elected bureaucrats.  It's true that agencies are normally created and budgeted in the legislature, but far more often than not, these Frankenstein monsters take on a life of their own, break free of their bonds, and proceed to rampage the countryside. 

This week the CATO Institute issued a Policy Analysis on a particularly egregious abuse of legislative authority contained the the Patient Protection and Affordable Healthcare Act of 2010 (probably from a part of the bill that they didn't read even after they passed it, right Nancy).  In this policy analysis, CATO tells us of the "Independent Payment Advisory Board".

Now when a law is normally proposed, it's submitted in one House of Congress or the other (sometimes almost simultaneously); but it must be passed by both and submitted for the signature of the President in order to become law.  Even after such a signature is given, such laws can be reviewed and challenged in the judicial system, and struck down if they are found to exceed the authority of the government or in other ways be Unconstitutional.  Not so with those passed by IPAB.  According to CATO,

"Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers… "

So, at least according to CATO, what the creation of this bureaucratic monstrosity means is that,

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

Before such a bureaucracy truly comes into power and forbids anyone from saying anything against them, let me point out that the 'Law of Averages' dictates that Bureaucrats with that kind of power will abuse it (and us) sooner rather than later.  

You know, it's just possible that in pointing all of this out to you before it jumps up and bites you in the ass, I have in fact performed a true act of contrition.  So just in case this qualifies, "Mea culpa, mea culpa, mea maxima culpa".