Sunday, September 25, 2011

Congressional Suggestions and Executive Actions

In our first year of retirement, we built a new home in Blythewood, SC. The design featured an entry foyer, 12 foot ceiling, front and center, with a dining room to the right and a bedroom to the left, both with 9 foot ceilings. I visited the construction site almost daily and was shocked to see during one visit that the talented twenty-something framing crew boss had framed the dining room and bedroom also with 12 foot ceilings. I challenged him and his response was that those framing drawings I had given him were just suggestions and that we were going to be much happier with those 12 foot ceilings all the way across the front of the house. Well, we did like the way he did it, but I suspect his creativity cost us a few thousand dollars in materials and labor.

Now I am realizing that the Executive Branch of our government views the laws passed by Congress much the way our framer viewed the construction drawings we had given him: as suggestions. And there are several problems with that, not the least of which is that the executive branch may make sudden changes of direction every four years.

This is not a Democrat vs. Republican or a Liberal vs. Conservative issue. I have heard allusions to the problem for decades expressed as differing approaches of various administrations to interpretation and enforcement of anti-trust legislation, environmental regulations, tax laws, etc. But it seems now to be the preferred mode of operation of both parties in our three supposedly power-balanced arms of government for Congress to pass complex laws of uncertain content and then hit the fundraising and campaign trails after turning them over to the Executive Branch to find out what is in them and decide what to do about it.

I blogged about this aspect of the Patient Protection and Affordable Care Act (PPACA) focusing especially on the open ended nature of the legislation indicated by the frequency of such phrases as ‘The Secretary shall,” “The Secretary may,” and “shall be determined.” There were hundreds. And then very soon after the law took effect, HHS began granting waivers (1,578 as of the end of July, 2011) to various employers from some provisions of the law. Recently a delay has been announced in implementation of a PPACA provision (CLASS) establishing a long term care insurance plan. Now we have some Republican candidates for president saying that, if elected, they will grant all states waivers from the new health care legislation. I don’t believe that is a reasonable approach. If I were president and 47 states opted out, I’d tax the heck out of them and give free health care to the citizens of the other three states.

But I don’t believe the champions of the new health care legislation should be surprised if waivers wave their heads even higher under future administrations because the precedent has been established and is being expanded. President Obama is now offering waivers to individual states from the requirements of the No Child Left Behind Act. I’m no champion of NCLB, thinking that the obvious corollary of it is No Child Gets Ahead, but Congress put it in place, and congress should fix it rather than leave whoever happens to be in the Oval Office to tinker as he or she sees fit. If one president grants waivers, will the next withdraw them? We cannot operate successfully with that kind of uncertainty.

So, my request to Congress is to slow down, read, understand, and debate the bills before voting, and raise a ruckus when the Executive Branch starts tinkering with, expanding the scope of, or ignoring elements of passed legislation. That is an abuse of power.

And, if there are just too many laws for the Executive Branch to keep up with and administer effectively, there are just too many laws.

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