Wednesday, November 23, 2011

Rule of Law

Michael Barone asks...

If Obamacare is so great, why do so many people want to get out from under it?

He goes on to make some excellent points about how passing a law and then selling exemptions to it is a fundamental violation of the Rule of Law. (Yes, I said sell. Organizations don't give candidates and political parties campaign contributions just for the fun of it.)

The Rule of Law

We’ve lost the original definition of “Rule of Law.” Republicans misused the term during the Clinton impeachment trials, but both parties bear responsibility for the perversion of this important concept.

Hayek gives us the classical definition:
“Government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan ones individual affairs on the basis of this knowledge." (The Road to Serfdom)
The Rule of Law is not ad hoc, but rather the pre-established “rules of the game,” predictable and understandable, allowing free people to exercise their rights while refraining from violating the rights of others. No exemptions for government or for special groups. No leeway for arbitrary exercise of power by bureaucratic fiefdoms. The tax code alone violates this principle, and OSHA and the EPA gouge out its eyes and tear out its tongue.

We Are Here

70 years ago, Hayek described what an absence of the rule of law looks like.
...The use of the government’s coercive power will no longer be limited and determined by pre-established rules. The law can ... legalize what to all intents and purposes remains arbitrary action.

If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal--but its actions are certainly not subject to the rule of law.

By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable
The rule of law is a good and right exercise of the coercive power of government to protect the natural rights of the people. What we have today is a grotesque repudiation of that Lockean principle that inspired our founders.

For a short explanation of Hayek’s classical understanding of the rule of law, see Charles W. Baird’s article, Hayek on the Rule of Law and Unions. Substitute “corporation” or “government" for his use of “union” in the  article, and his point will still remain the same. A government that hands out favors and disrespects the natural rights of the free citizenry becomes debased, arbitrary and eventually, tyrannical.


Always On Watch said...

In my view, ObamaCare is unconstitutional. The commerce clause justification for forcing citizens to buy a private product is worse than a stretch.

What will SCOTUS decide in a few months? I have no inside track on that information, but I expect a 5-4 vote validating ObamaCare.

As for the waivers, yes, they are bought and paid for. And they violate the very principles of insurance: the low risk pools offsetting the high risk pools.

I don't see Congress reining in the destruction of our Rule of Law -- at least, not anytime soon. Our outlook for remaining a free nation is grim. The Nanny State has invaded every aspect of our lives, and many do embrace the Nanny State (some out of necessity, some because they no longer recognize the intrusion as an intrusion).

Ducky's here said...

Repudiating the Lockean cult of the individual is often beneficial to our well being.

Is the individual mandate the big problem Libertarians have with Obamacare? Absent single payer which removes the insurance company vigorish and is far more efficient I don't know what else can reasonably done.
Allowing the young and healthy to opt out dilutes the purpose of insurance. The expense is spread throughout the population rather than being concentrated where there is risk.

In this case, assuming you agree with the goal of having everyone be insured, the law is perfectly reasonable and distributes the cost fairly.

Other than compelling Libertarians to act responsibly, always a chore, the issue I see is the giveaway to the private insurers but eliminating a big chunk of healthcare costs doesn't seem to be a goal of the Bagger walking dead.

Anonymous said...

The HCR act doesn't eliminate any costs, it just spreads the costs among more people. "Obamacare" (I put it in quotes because I hate using that term) does nothing to actually make the practice of medicine cheaper and more efficient.

But anyway, Silver I think you're right on the money with this post. I look at a lot of stuff congress does to subvert their own rules and what not and it makes me laugh. Like when the Democrats tried to push the HCR bill through the hole via budget reconciliation. And to be fair, Republicans trying to make it so that a super majority is required to raise taxes is along those same lines.

The order of the day seems to be: if you don't want to play by the rules then just change 'em.

Ducky's here said...

^ Exactly, no single payer, no reduced costs.

However, to avoid a big spike in insurance costs for elderly, the young have to be in the game.

Always On Watch said...

Remember when HIPAA was supposed to be wonderful? We could all get insurance, regardless of pre-existing conditions, provided we had a certificate of 18 months of creditable coverage?

That's how Mr. AOW got his private policy. The no pre-existing conditions coverage = $269. The pre-existing conditions coverage under HIPAA = $698. And those figures are for a policy with $2500 deductible, 70/30 coverage until $5000 out of pocket, and no prescription coverage.

Yep, pre-existing conditions cost the company and the individual more.

Absent single payer which removes the insurance company vigorish and is far more efficient I don't know what else can reasonably done.

That may be so. In fact, I wouldn't be surprised to see the upcoming SCOTUS decision lead to the single payer system. The coming tsunami of health care for aging Baby Boomers is going to lead to some major changes in health insurance and health care, IMO. Already, 80% of those in nursing homes are on Medicaid -- many of these individuals having exhausted their insurance coverage and into full-blown medical bankruptcy.

Ducky's here said...

Many on the left are hoping Obamacare gets struck down.

Single payer isn't going to be successfully challenged.

Silverfiddle said...

Ducky: Free people reject the notion that government should have anything whatsoever to do with the insurance and health care markets besides establishing rules and enforcing them.

This is a collectivization, which is the reason people on the left love it and people on the right do not.

Silverfiddle said...

AOW: The Kagan hearings were instructive as to just how big a penumbra the commerce clause casts.

Anonymous said...

After age 70, no Neurosurgery will be the effect of the new rules coming down. People are no longer called people. We are now called Units. Comfort care is what we get. All to de-humanize us. I have the vid over at my place from Mark Levin call in by a Neurosurgeon

Ducky's here said...

This is a collectivization, which is the reason people on the left love it and people on the right do not.


Yeah, so what. Let's try to debate the merits and goals and not get bogged down in "my dogma's better than your dogma".

Free people should also be healthy. It improves productivity or maybe a Libertarian paradise like Congo is your goal.

Unknown said...

AOW "but I expect a 5-4 vote validating ObamaCare" We better hope they don't, because our federalist form of government would be over. And the only way to bring it back is rebellion.

Silver, speaking of the rule of law, did you also hear that lawmakers are above the law and that insider trading is the norm with in the halls of congress?

Jersey McJones said...

Silver, how in the world did you manage to fit OSHA and the EPA into this theory? Even Hayek believed knee-jerk laizzez faire answers to everything were simplistic and incorrect. He did not believe there was no place for government. You talk about the rule of law? What about our safety in the workplace and in our environment???

Are you saying we should criminalize corporate malfeasance? because if you are, then that's fine with me! Let's start arresting and jailing crooked CEOs!


Country Thinker said...

Strong rule of law, along with extensive individual property rights vigorously defended, are two key components for a sound economy. It is not a coincidence that the decline of rule of law in this country has been accompanied by sluggish economic performance.

As a side note, there's no such thing as "single payer." It is single administrator, with millions of individual payers. And like any monopoly, single administrator health care systems work abominably.

Always On Watch said...

I wonder how many Americans today even understand the principles of federalism? Or care about those principles?

Yes, I'm feeling pretty negative these days.

Unknown said...

I am sure there are more then there was 3 years ago, AOW.

Silverfiddle said...

@ Jersey: Silver, how in the world did you manage to fit OSHA and the EPA into this theory?

You are obviously ignorant of the facts...

This piece by Hayek describes those agencies perfectly:

If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal--but its actions are certainly not subject to the rule of law.

By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable

Anonymous said...

Yeah, lets go back to the time where insurance companies can drop you when you get sick or deny coverage if you have a pre-existing conditions.

Let's go back to a time where we have to have a freakin' Spaghetti Dinner to help someone pay health care costs.

Jersey McJones said...

"If the law says that such a board or authority may do what it pleases,..."

The spirit and intent of the laws that created the EPA and OSHA do not in any way say those agencies can do what they please.

When it comes out that something happening in an agency is crooked, we have those very same laws to deal with that.

The problem we have these days is the lack of laws and enforcement to deal with changes in the world around us.

Conservatives will always say, "Well, we have enough laws!" But the time that sentence has finished, some clever character has invented some new ingenious way to rip off the public. Times change. That's why our Constitution was crafted to allow changes and malleability of the common laws.

What we don't do enough is to replace laws. American legislators and courts have been negligent in allowing obsolete laws to remain on the books. We have piles of silly old laws, dating back far too long, that we could do without.

The point here is we can't stand on simplistic notions like "We have too many laws." We have to think about what laws we need and what laws we don't. The number of laws covering everything else isn't important - it 's a non sequitur. It is only the issue at hand that matters.

Should the government do something or not? That is the question.

I say yes - please, for f'n Christ's sake, at least keep our air, water, and public places safe.

What kind of asshole would think otherwise? Certainly you wouldn't, right???


Ducky's here said...

@AOW -- I wonder how many Americans today even understand the principles of federalism? Or care about those principles?

Well since my fringe right brethren are content to call The Black Bush a socialist, I'm going to go out on a limb and say that the left understands Federalism a lot better than the right understands political economics.

Heck, I bet they understand federalism better than the fringe right understands it.

Ducky's here said...

libraldude --- You've got them all on a nostalgia high.

Silverfiddle said...

Libdude: Lets get back to the say where doctors could get paid in cash, and often, of their own volition, gave discounts to poor people. Lets get back to the day where poor people had babies and got operations at the hospital and paid over time if they didn't have it all up front. Yes, there was a day not too many years ago when government did not distort the health care market, and poor people received care.

Silverfiddle said...

Jersey: Take your false dilemmas and shove them. Nobody wants polluted air or workers killed on the job.

There's an efficient median, and Obama and the progressives of all parties have way overshot that. Why do you think jobs are fleeing the US. Progressive overregulation is killing our economy.

Anonymous said...

We have been hoodwinked by our indolence, greed, and lack of courage to allow Government to cast itself effectively in the role of MAFIA. It runs what-amounts-to an old-fashioned PROTECTION RACKET.

You know the routine:

"We have the power to smash up your place of business, take your home away from you, steal all your money, rape your wife, cripple your kids, and kill you. In order to prevent that, all you need to do is give US 50% of every dollar you take in from now on ad infinitum."

Impossible to resist when a cadre of grim, hard-eyed thugs armed with machine guns marches into your life and shoots all the bottles off one of the shelves in your little pharmacy just to give you a sample of what happens to people who refuse to pay for "protection."

"And none can call [their] power to account. ..."

It's a near perfect parallel. The threat of incarceration and confiscation of our property is ever present when dealing with those who work for our "representative dumb-MOCKery."

~ FreeThinke

Anonymous said...

For every cynical, insolent, sneering, sarcastic jibe issuing from the lips of a liberal a new faggot forms to feed the crackling blaze beneath his treacherous, traitorous feet.

~ FreeThinke

PS: The verification word for this post is UMONSTRE. Now isn't that quaint? - FT

Jersey McJones said...

"Why do you think jobs are fleeing the US."

Lack of tariffs? "Free Trade?" Disregard for the well being of the United States?

You tell me, Silver.


Silverfiddle said...

To paraphrase a famous NY politician, the cost of doing business is too damned high!

Tariffs? Go read some depression era history and the get back to me.

KP said...

Interesting article -- and comments. Once again proving that the left and right will not (any time soon) agree. Reminds me of the middle east. The divide is so great that if it were not so sad it would be humorous. Seriously, the comments sound like they are coming from Hatfield’s and the McCoy’s; albeit with book learnin’.

Aside from the right or wrong of Obamacare, which I am not a fan of, the exemptions are as distasteful strike as anything I have seen recently in politics.

Finntann said...

Where we fail today is in equal treatment under the law and in equal consideration of interest.

Once a law is passed there should be no such thing as a waiver.

The failure of modern medicine is not in treatement or cost but directly attributable to our innate desire for immortality.

It's harsh, but we treat those that we should not treat. We refuse to accept the diagnosis of mortality. We trade vast fortunes for six months, a year, two years to the detriment of all involved, except those making money off of it.

What is reasonable action and what is reasonable cost? How much is six months of additional life worth?

My sister died of breast cancer a little over a year ago with medical bills well into the six figures. In the end, she wished she had gone to Europe instead of to the doctor.

Just something to consider.

Always On Watch said...

Liberal Dude said:

Yeah, lets go back to the time where insurance companies can drop you when you get sick or deny coverage if you have a pre-existing conditions.

You don't know what the hell you're talking about.

I don't know about the dropping part. But one would think that Mr. AOW would have been dropped by BCBS after his stroke in 2009. He wasn't.

But I DO know about getting coverage with pre-existing conditions.

1. Those with pre-existing conditions and who obtain coverage via HIPAA are rated and pay a much higher premium. Sometimes that premium forces an individual right out of the market.

2. Go without coverage for pre-existing conditions for 10 months (by ridering out the pre-existing conditions), and after that 10 months has gone by, you can get the same premium as those without pre-existing conditions from BCBS. That 10 month gap is a huge financial risk, of course.

3. In order to obtain those pre-existing conditions policies that Obama brags so much about, one has to be without any coverage for 6 months. BTW, those policies also involve a $2500 deductible.

Always On Watch said...

Surely you're jesting about the Left's love of federalism.

dmarks said...

Jersey said: "Lack of tariffs? "Free Trade?" Disregard for the well being of the United States?"

Free trade greatly benefits the people of the United States. Tariffs (the ruling elites punishing us by stealing money from us if we make informed decisions thay don't agree with) should be entirely eliminated.

As I said before Jersey, I respect your trade preferences to the point that I don't want to take them away from you. All I ask is that you respect my rights, and those of all of the rest of us, to make these informed decisions without ignorant ruling elites punishing us with tariffs or other insane methods.

As for jobs fleeing the US? The unions in the US have forced a large proportion of them out. As have the overhigh taxes and insane regulations.

Make the nation 'right to work' stop killing jobs with overtaxation, and get rid of unneeded regulations, and the jobs will flood back.

Ending free trade will only make the problems worse. The jobs that have left would not come back, and millions would quickly be fired due to the loss of our export sector of the economy.

dmarks said...

Duck said: "Absent single payer which removes the insurance company "

Actually, single payer does not the insurance company from the picture. It replaces thousands of competing companies with one single company. One that is unaccountable, a monopoly. One run by a huge organization that that has a reputation of killing people that refuse to go along with it.

Government control of healthcare is deadly.

We need to dismantle Obamacare and return control over healthcare to the people.

KP said...

Yo, Finntann; smart comments from a person who clearly has deep personal experience. Respect.

I have been down that road as well; with a parent, with a child and on a personal level. A shitload of money was spent by the government and our family to keep us alive and/or find answers. I think it was a good investment.

My question (and one I can't answer) is who is going to decide when it's time to go? Are any of us capable? We may think so; but I am not so sure.

Check it out check it outer:

My bro, F-14 Tomcat vet and retired Admiral shared a story with me when I reminded him of our mom's desire not to be resucitated:

He said the story goes that a gung ho pilot swore he would never be taken a POW. He wore guns on his waist and leg and said he would fight to the death if shot down. When he was shot out of the sky and slowly came out of the sky under his chute, he saw the enemy under him with rifles pointed his way. He had a sudden change of heart. He dumped all his weapons and raised his hands. He lived as a POW and returned to his kids and wife.

The point - as you know so well:

We don't really know as much as we would like to until the point of no return. I have looked into the eyes of a loved one trying to make this decision. How can we do this through maths? How can we possible afford not to?

So tough!!

Ducky's here said...

Anyone who has not had a living will drawn up is being extremely selfish.

My family knows exactly what to do. If quality of life has been lost, end it.

KP said...

Ducky, I agree, and my family all have directives; even specific people to make decisions. That is enough in some cases. In others situations, it is not possible to know the outcome of an event.

A perfect example would be stroke in the midbrain. Patient is unconcious, surgeon tells you the stroke is "in a good place" making decent recovery possible. You have five minutes to decide what to do at 4:30am. The directive isn't worth the paper it is written on. You will decide while trying to gather some degree of medical certainty.

My point, when decision making is not black and white the definition of 'quality of life' becomes fluid. In many cases you will never know if you made the right decision unless you allow the patient to live and you are afforded hindsight. In the vent you end a life you will be left seeking to convince yourself you made the right decision.

If the decision making process is medically black and white you pat yourself on the back as you are the hero. If it is not black and white (more likely), you try to talk yourself into feeling good about it.

Silverfiddle said...

I agree with Ducky, and KP has brought up some excellent points. I'll be blogging on this topic this upcoming week.

It is an interesting subject, and you guys have provided some thought-provoking comments.