Saturday, November 16, 2013

Tornado Witness

"If you've been on TV more than 5 times describing the sound of a tornado, you might be a redneck." Jeff Foxworthy.

It is impossible to access any news gathering site, whether TV, radio or on-line and not be inundated with Affordable Care Act stories. The latest - President Obama's promise that we could "keep" our plans and the emergence of reality - contains an interesting twist. It is immediately applicable to the job I do.

The Administration suggest that, when the President made the statement "If you like your present plan you can keep it - period" in fact he meant something subtly different. The promise only applied to those plans meeting ACA's requirements, they say. The grandfathering clause only applied to policies purchased before the law was signed, with great fanfare, in 2010. Etcetera.

The word "disingenuous" was invented to sound better than "lie" when one was speaking with respect. The cacophony of outrage occurred without delay and the president was forced to.... This is where it gets tricky.

The law seems clear - as clear as any law weighing almost as much as the forklift required to lift it. Non-complying policies are void, unlawful. The policy holder gets a letter in the mail and an invitation to purchase something else (almost always more expensive) or enter the magic world of the state insurance exchanges. That's a different subject.

This week President Obama announced a one year moratorium on enforcing the law.The echo of his words had hardly died before the obvious question flooded the airwaves. "Can he do that?" That is, can the executive branch ignore the "law of the land?"

Often, the use of discretion by police officers is offered up as an example of just such behavior. Law enforcement, in nearly all cases, is part of the executive branch of the various Federal, State and Local governments across the country. We enforce the laws passed in the legislative branch of our governmental entity, but that is not done automatically. A little kid steals something petty and is taken home with a lecture. A driver is fairly confident that a 35 mile per hour zone actually means 40 (or more).

Some judges don't care for some laws. Criminal Impersonation - using a false name to derive a benefit - is a felony that is committed routinely by individuals with warrants for their arrest who "forget" their wallets...and their names and birthdays. They pick the first name that comes to mind. Most prosecutors and judges prefer us to use the misdemeanor "False Information to Police" unless the person has falsely signed something official like a fingerprint card or a ticket. Sometimes, as an inducement to honesty we'll forgo even the minor charge if the person's memory improves. These considerations almost always turn on proof issues.

Can a child really form the "criminal intent" necessary to commit a petty crime? Are the devices used in vehicles really accurate enough, driving a precise enough skill, to hold drivers to the absolute speed limit? Are there enough police officers in America to enforce speed laws that strictly? Will a jury send anyone to prison who tries to lie their way out of an encounter with police? Are there enough prison cells to hold them?

This is different from throwing a blanket over an entire body of law and, for obvious political reasons, promising not to enforce it. Here in Colorado, we've seen just this sort of thing when a collection of sheriff's - elected official all - stated that they would not enforce Colorado's gun laws. 

At what point does the executive branch decide that the legislature can be ignored? When they believe themselves wiser than the will of the people the law makers represent? When the law itself - the one the executive himself signed - is fatally flawed? When political considerations make enforcing the law risky to their careers? What are the guidelines set up to ensure these decisions are not made for immoral reasons, such as racism, sexism or any of the other isms to which human beings are prone?

It is whim-based, a tornado of competing interests best left up to the legislature to resolve. It's their job.

UPDATE: I am an undying proponent of the James Friedman Rule of rhetorical appeal to authority - "Reference to (legal) authority may only mean you've found someone else who is wrong, but agrees with you." Consequently, copy and paste wars leave me cold. Occasionally, however, someone writes something that so artfully states a position with which I agree that I have to clip it. Kevin Williamson, a contributor to National Review Online offers a succinct examination of the Obama Administration's lawless nature in The Front Man. In it he details several instances of presidential overreaching (there are many more). His point - the Obama Administration will live far beyond its years in the bureaucracy it has created, the rules promulgated by these executive branch organisms and now in the judges it deems itself unconstrained to appoint. The president has decided, and we have sheepishly (or intentionally - witness the Progressive love affair with the "promote the general welfare" clause contained in the Constitution's Preamble) gone along with him.


  1. It is their job, and will they solve it? I am doubtful they will. As people scream that ACA is law of the land and we need to stop whining about it, I like to point out that prohibition was, too. Laws that do not serve the populace can be repealed. That's what needs to happen with this one. I don't think there is anything salvageable about ACA. It needs to be less complicated with less pork.

    Of course, what do I know? I'm just a tax payer. :D

  2. I am, too. The issue, in my mind at least, is that a really awful law is now "the law of the land." Only Congress can amend it, unless we want to abandon two hundred thirty-something years of doing it the way Jefferson, Madison, Washington et al arranged.

  3. That is exactly what they want to do, Jim. The Constitution is no longer convenient for them because it gets in the way of what they want to do. It's what they want to do that scares me.

  4. So true. The grave danger to our Republic is that it doesn't end with the Oman and his administration. It sets the bar for everyone. I don't think this kind of unrestrained power belongs in anyone's hands. That's what the Constitution attempts to do. It's only a piece of paper, a Parasol in a Hurricane.