June 7, 2011
To the Members of the 112th Congress:
One of the head-scratching moments of the congressional debate leading up to the passage last year of the Patient Protection and Affordable Care Act (otherwise known as “Obamacare”) was then-House Speaker Nancy Pelosi’s response when asked about the contents of the 2,000-page draft law [see Ohio Farmer Letter, “Reconstitutionalizing America”]. You recall that Speaker Pelosi said, “We have to pass the bill so you can see what’s in it.” She was not alone with this thought. Senator Max Baucus, chairman of the Senate Finance Committee that had key jurisdiction over the health care bill, said something similar: “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language. We hire experts.”
Both comments generated considerable ridicule, especially from people who opposed the legislation. But both comments bring to light a fundamental fact of modern American government: Congress no longer “legislates” (that is, passes binding universal laws) in the way the Founders intended when they wrote the Constitution. Instead, Congress passes general statutes containing policy goals, but delegates the power to write the actual operating laws to executive branch administrators and independent agencies. In practical terms, this means that the executive branch and independent administrative agencies, rather than Congress, actually determine the details—the real law as it will operate on citizens. This might be acceptable except that the process of administrative government is increasingly arbitrary, and arbitrary government is the very definition of lawlessness.
Some short sections of the health care law will require hundreds of pages of detailed regulations, which administrative experts are going to spend the next several years working out. Sen. Baucus is right: the statutory language does not tell you how the law will operate in practice. The 2,000 page statute will grow to perhaps 30,000 pages by the time the administrative agencies finish filling in the blanks. Here is another wrinkle: the health care law shows that Congress is now passing “laws” that cannot take effect as written, because they are so woefully incomplete.
Two recent news items highlight this problem. First, the health care law contains a number of mandates on insurance companies and businesses intended to correct what are widely regarded as abuses of the private marketplace for insurance and health services. Yet the Department of Health and Human Services is handing out “waivers”—exemptions from the letter of the law—like Halloween candy to labor unions, big businesses (McDonald’s), small businesses (boutique restaurants in San Francisco), and several of the large insurance companies who are thought to be part of the problem. The health care law’s waiver process is like telling the traffic police that they get to set a “safe” speed limit, but then allowing them to decide that different motorists get to drive at different speeds. We’re no longer equal under the law when a government administrator can decide who has to obey a law and who doesn’t. Prior to this moment, federal government waivers tended to be applied only to state and local governments in their implementation of federally-funded programs like welfare or highway construction or public education. Now the government is extending waivers to private citizens and their businesses, treating equal people unequally.
The second news item ringing alarm bells is the decision of the National Labor Relations Board (NLRB) ordering the Boeing aircraft company to build its new Dreamliner airplane in Washington state, rather than South Carolina, where Boeing has already spent over $1 billion building a new assembly line for the Dreamliner [see Ohio Farmer Letter, “The Spirit of Checks and Balances”]. The NLRB based its decision on a clause in the Wagner Act that says private companies may not “retaliate” against labor unions, and argues that locating aircraft production in a non-union state amounts to “retaliation” against the unions that have struck Boeing three times in the last decade in Washington state. The “retaliation” clause has never been interpreted this way before; and, in any case, we should be asking why an independent agency—the NLRB—gets to enforce the law, rather than the Justice Department, an executive department politically accountable to the President, working through the ordinary federal court system. The NLRB was set up to provide labor unions a privileged position in our legal order, but it means that any company might be prohibited from moving or expanding from a unionized state to a right-to-work state. It is doubtful Congress meant the statute to be construed this way when it was passed, or that any Congress would consent to such a construction. As a practical matter the Boeing case is likely to be isolated, but that just makes the Boeing precedent all the more troubling, as it reveals our labor law to be arbitrary. And the NLRB is hardly alone in this style of unaccountable government that blurs the separation of powers between the branches. The Environmental Protection Agency operates in a similar fashion, and the new financial regulations of the Dodd-Frank law passed in response to the banking crisis of 2008 will also be determined by the administrative organs of government.
It may be necessary for Congress to delegate the working out of many details to administrative agencies. But this practice has come with the high cost of degrading the deliberative function of Congress’s lawmaking power. The easy delegation of the details is why many large laws are rushed to passage in a less than transparent manner. True debate and deliberation has atrophied. This slow abdication of legislative responsibility on the part of Congress started many decades ago, and is no simple matter to fix. As a general principle members of Congress ought to refuse to vote for statutes that delegate large amounts of the real lawmaking to another branch. If the health care law’s perverse consequences (such as the possibility that, without a waiver, McDonald’s would have had to drop health insurance for all its employees) were laid at the feet of Congress, then Congress would write laws more carefully, or move more quickly to amend them as they should. In one word, is this not a good occasion for Congress to assume more responsibility for its actions?