‘If the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood’

When the debate turns into a cacophony of noise and people seem to be shouting over each other with arguments that twist and turn in upon themselves and degrade into mere name calling, it is time to return to the original concepts and reread the original text to grasp the foundational principles.

Thus it is with the debate over ObamaCare.

Though it carries the president’s name in the commonplace short-hand for the Patient Protection and Affordable Care Act, he had little to do with it. It was largely drafted by bureaucrats and congressional staffers and cobbled together in the U.S. Senate.

James Madison

In Federalist Paper No. 62, published Feb. 27, 1788 in the Independent Journal in New York under the pseudonym Publius, James Madison explained the role and intended function of the Senate. Madison envisioned the Senate as more mature and more restrained than the House of Representatives. Senators held longer terms of office, had to be 30 instead of 25, and, instead of being voted on directly by the people, Senators would be appointed by state legislators and thus less likely to usurp state powers and authorities.

“Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion,” Madison explained. “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”

We upset that apple cart with the ratification of the 17th Amendment in 1913, which changed Senators to be directly elected by voters in each state.

Thus we have a Senate today in which the majority hold no qualms about aggregating all power to Washington and denigrating the power of the states to less than that of city councils.

Madison also believed the Senate’s cooler heads would be able to stand against 2,700-page behemoths of legislation like ObamaCare.

Recall how Justices Antonin Scalia and Stephen Breyer complained about this in oral arguments two weeks ago.

Scalia asked, “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) … Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”

Breyer also remarked on the wide range of topics contained in the law, everything from breast feeding to black lung disease.

Madison not only was prescient enough to warn about laws so voluminous they cannot be read and so incoherent they cannot be understood, but also about special interest influence and the wretched fluidity of a meddling and out-of-control government whose policies and dictates swing without warning from pillar to post wrecking the nation’s economy because no prudent merchant can tell what will be lawful in the near future.

Here are the final paragraphs of Federalist No. 62. As they say in the movie trailers, “Snatched from the headlines”:

“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

“In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

“But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”

Can anyone say this Congress or this administration possess order and stability?

48 comments on “‘If the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood’

  1. nyp10025 says:

    Plenty of order and stability in the Obama Administration.
    Can’t say as much for the Republican-controlled House of Representatives.

  2. Stability. I guess that is why the economy is such a train wreck.

    ________________________________

  3. nyp10025 says:

    No it is not.
    And, anyway, whether economic policy is good or bad has nothing to do with whether the running of the Executive Branch is stable and orderly.

  4. Steve says:

    Suddenly there is a “Bronze” plan included in that law. Suddenly catastrophic care is allowed for those under 30. Why thirty? Maybe a throwback to the days of don’t trust anyone over thirty?
    These sudden revelations are astounding, not. They simply continue to show how complex this law is. 2700 pages I stand corrected.

    Better yet things are going to change, by the law itself. Currently essential health benefits have yet to be specified. This means the bloated law is only going to get bigger and more confusing.

    Yup stable, describes it to a T.

    I think the Supreme Court understands it well. Whatever they decide will be fine with me.

  5. nyp10025 says:

    I have no idea what you are talking about with respect to “catastrophic care for those under 30.”
    As for “bronze plans,” it has been a feature of the legislation from the very beginning that if you could not get insurance through your employer you could buy insurance over the internet through a website that would kind of function like expedia.com or orbitz.com. The plans will come in three categories of coverage, with each category offering generally comparable terms and conditions. Gold, silver, bronze. If you can’t afford the insurance on your own, you get a special tax credit. Seems simple enough to me.

    If you want to see how the Romney version works in Massachusetts, look up mahealthconnector.org. Everyone likes it.

  6. Steve says:

    wow, why have 2700 pages. nyp wrote the whole thing. Sun has an AP story today. Read it. It has some info about under age 30 catastrophic coverage.

    I have said many times the states have the right to do this but the feds, that is being decided now.

    I wil be satisfied with whatever the Supreme Court decides. I may not be happy but I will be satisfied.

  7. nyp10025 says:

    OK, now I see what you are referring to. If you can’t get health insurance through your employer, you can buy “gold,” “silver,” or “bronze” plans over the internet. The bronze plan has very low premiums, but has the lowest amount of coverage. If you are under 30, you can get a version of the bronze that has even lower premiums, but even less coverage, except for medical catastrophes. Why is that limited to those under 30? Because they are less likely to get cancer, heart disease, complicated pregnancies, etc. than those over 30, so offering a cheaper alternative that still fends off disaster is a reasonable step.

    But all this is in the bill, and is described for you at healthcare.gov

  8. Steve says:

    Yeah, I will look at that after June.

  9. joe castellana says:

    LET’S JUST PASS IT …….THEN WE’LL SEE WHAT’S IN IT

  10. nyp10025 says:

    The law was exhaustively debated and analyzed for over a year. Hundreds of hours of televised hearings and debate. The idea that people would not know what is in it is absurd.

  11. Pelosi didn’t know what was in it.

  12. Steve says:

    nyp didn’t recognize the under 30 option until pressed.

  13. nyp10025 says:

    Yes she did. What she was obviously saying, in a characteristically clumsy way, was that it is understandable that people won’t appreciate how healthcare reform benefits their families until the law begins to affect their own lives. Until people with pre-existing conditions are able to get health insurance. Until seniors see the donut hole start to close. Until parents are able to keep their children on their health insurance plans until the kids are 26. Until small businesses start receiving tax credits for sponsoring insurance plans for their employees. Since most Americans don’t read complex pieces of legislation, they are not likely to appreciate those reforms until after the law takes effect and the reforms touch their own lives.

    One may oppose or support these changes. But it requires either sheer blindness or bad faith to assert that Nancy Pelosi meant anything else.

  14. nyp10025 says:

    I don’t understand the relevance of Steve’s comment.

  15. Steve says:

    Please, you do so understand that. Spinmiester.

  16. From a recent column in WSJ: “Rep. John Conyers complained, ‘What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means?'”

    I took Pelosi at her word, partly because vast portions of it are left to the discretion of the HHS secretary.

    ________________________________

  17. nyp10025 says:

    Nah. There is about as much regulatory delegation as there is in any complex piece of legislation. HHS discretion over transition rules, precise ratios and the like is absolutely nothing compared to the power the SEC has.

  18. Steve says:

    Actually when Pelosi made that statement, the bill was in flux. Since it was not locked down no Democrat could say with certainty what would be in the law.

    This more than the rest is reason to be very worried about this law. They simply could not sell it as good legislation because they did not have the votes to pass it unless they played legislative games with the process and they did not truly know what would be in it.

    Very bad legislative process, forcing it on the country made the country very wary of it. But the Democrats knew it was their only chance so…we are seeing this stinker go before the Supreme Court.

    Ezra Klein wrote a good piece on Nancy and the process.

    http://voices.washingtonpost.com/ezra-klein/2010/03/nancy_pelosis_strategy_for_pas.html

  19. Robert says:

    To quote Donald Trump, whether you care for him or not. He has seemed to hit the nail on the head: “We’re going tobe “gifted” with a health care plan we are “forced” to purchase and Fined if we don’t, Which purportedly covers at least ten million more people, “without adding a single new doctor”, but provides about 16,000 new IRS agents, written by a committee whose chairman admits he doesn’t understand it, passed by a Congress that didn’t read it, ( no matter how long they discussed it), BUT “exempted themselves from it, with funding administered by a treasury chief who didn’t pay his taxes, for which we’ll be taxed for four years before any benefits take effect, by a government which has already bankrupted Social Security and Medicare, all to be overseen by a surgeon generalwho is obese, and financed by a country that’s broke!! What could possibly go wrong..!! ” Now how about that guestion of “STABILITY”

  20. nyp10025 says:

    Just about everything “Robert” wrote is untrue.
    There are no “16,000 new IRA agents.” That is a lie.

    The law was not “written by a committee whose chairman admits he doesn’t understand it.”

    Congress did not exempt itself from the law.

    We will not be “taxed for four years before any benefits take effect” – many of the benefits have already taken effect and have benefited millions of Americans.

    The law is not “overseen by [the] surgeon general.”

    And, since the law reduces the deficit, it is is absurd to say that it is “financed by a country that’s broke.” In any event, our country is not “broke.”

    The claim that the law does not “add a single new doctor” is false, since the law provides substantial funds for the training of new doctors and nurses.

    And the people who are going to be “forced” to accept tax credits to obtain health insurance are the beneficiaries of a healthcare system that has to treat them when they get sick and show up in the emergency room or have car accidents, even though they are currently uninsured and can’t pay. The economic term for such people is “free riders.” The lay term for such people is “free loaders.”

    I have rarely seen so many false statements in one short paragraph.

  21. nyp10025 says:

    to “steve”: the “deem & pass” legislative strategy referred to in your comment was not used for the final passage of the bill.

  22. Steve says:

    I know, first they passed the “fix it” bill, then the house bill. This made the house bill the same as the Senate version. Then they passed the Senate version and off it went to the President. All legal and stinky.

    It remains fact, Pelosi was clear and actually telling us the truth when she said we have to pass it to see whats in it. She did not know what would remain in the law until those three Sunday votes. You spin it all nice for her but your contention that she meant to say all those nice things is false.

    None of the Democrats knew what would remain in the law until it got passed. It remains a very bad way to present legislation and they knew they were out of time.

  23. nyp10025 says:

    Untrue. The texts of all the alternative versions of the law were published and discussed and debated before they were voted upon.

  24. Steve says:

    Read it again “remain in the law” Not what was proposed in the bill at the time she made her infamous statement.

  25. Robert says:

    Sorry that you don’t understand what you are championing nyp10025, but congress did exempt themselves, as well as many other groups. And, yes, Pelosi did say, just vote it in and we’ll figure it out afterwards. Even the Supreme Court Justices guestion the “voluminus” content of the bill and stated it would be near impossible to read and sort through. I certainly hope they don’t take the attitude of Congress and just rubber stamp it do to the “voluminus” content.

  26. OK, Petey, how many IRS agents? And does add to the deficit and the revenue is front loaded before the expenses kick in.

  27. Vernon Clayson says:

    nyp10025 states the alternative versions of the law were published and discussed and debated before they were voted on, the news of the time related that the members of the Congress were given overnight to review them. Apparently that was no problem for that glorious band to read 2700 pages overnight but I mentioned at the time it was like a college student having to read War and Peace overnight for a test in the morning. It’s very likely that no member of the Congress has read the bill in its entirety to this day but perhaps nyp10025 has read it and produced a condensed version, a synopsis, for one or another of our Nevada leaders???? Not saying it’s Harry Reid but when would he have had the time to read this epic tome, perhaps nyp10025 could explain that??

  28. Steve says:

    I feel the need to re-iterate nyp failed to recognize the catastrophic coverage available only to those under 30 until I pressed the point. Then claimed he did not get the relevance.

    Perhaps that is due to the very size of the law, cant retain it all you know.

    But nyp certainly has the detailed talking points well in hand.

    Relax nyp, its all a part of the mud wrestling.

  29. nyp10025 says:

    It’s like “Night of the Living Dead” around her. I knock down one lie after another, but then find, to my horror, that they have sprung back to life.

    So let’s start with the absurd “16,000 IRS agents” lie, which I will outsource to Ezra Klein: http://voices.washingtonpost.com/ezra-klein/2010/04/will_the_irs_need_16000_new_ag.html

    “One of the things in the health bill is 16,000 additional IRS agents,” saidNewt Gingrich, echoing the latest GOP talking point. Rep. Paul Ryan joined him, saying the IRS will get “16,000 agents to police this new mandate.” But is it true? Well, no.

    “The CBO predicted that costs related to the Affordable Care Act would “probably include an estimated $5 billion to $10 billion over 10 years for administrative costs of the Internal Revenue Service.” This money, incidentally, isn’t to audit people or go door-to-door enforcing the individual mandate. It’s primarily to give subsidies to qualifying small businesses and individuals. But put that aside for the moment.
    “On March 18, the Republicans on the House Ways and Means Committee put out a news release saying the “IRS may need to hire as many as 16,500 additional auditors, agents and other employees.” As you might expect, “may” does some heavy lifting here. First, Republicans are using $10 billion, not $5 billion, as the number beneath their estimate. Second, as FactCheck.org says, the GOP “simply divided the spending (which they figured could be $1.5 billion per year once the law is fully effective) by the current average payroll cost for the entire IRS workforce.”
    “In other words: No money for desks, office equipment, rent or anything else. Every possible dollar is hiring “IRS agents.” And it doesn’t account for annual raises. Oh, and before I forget, “agents” is also there to mislead. As FactCheck.org notes, “there’s a huge difference between an IRS revenue agent — who calls on taxpayers and conducts face-to-face audits — and the workers who make up the bulk of IRS employees. Those who work at the IRS include clerks, accountants, computer programmers, telephone help line workers and other support staff. In fact, IRS revenue agents make up only 15 percent of the IRS workforce.”
    “So let’s go back to Gingrich’s original sentence. “One of the things in the health bill is 16,000 additional IRS agents,” he said. First, that’s not a “thing in the health bill.” It’s an extrapolation from a CBO report. Second, the word “is” is wrong, as even the original GOP spin only used the word “may.” Third, the number 16,000 is wrong. Fourth, the word “agents” is wrong. But if the statement gets no credit for truth, it’s at least efficient: Not just anyone could pack four falsehoods into 13 words. But Gingrich, now, he’s a professional.”

  30. nyp10025 says:

    as for “Robert’s” continuing lie that Congress has exempted itself from the healthcare law, I knocked that down a few posts ago. Here it is again, back from the dead.
    Take a look, Robert, at section 3590(D) of the bill. It reads:

    H.R. 3590: D) MEMBERS OF CONGRESS IN THE EXCHANGE.— (i) REQUIREMENT.—Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are— (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).

  31. OK, is the number 3,000?

    ________________________________

  32. nyp10025 says:

    Don’t know. It is hard to say how many administrative personnel are needed to handle the tax credits going to individuals and businesses and to supervise the additional tax charge to the free riders who choose to go without insurance and stick us with the costs of thei medical care. But it is easy to say that the idea of “16,000 IRS agents” is a terrible falsehood and it’s use discredits anyone who uses it.

  33. Vernon Clayson says:

    nyp10025 is marching to the beat of the liberal drum. I don’t believe anyone said there would be 16,000 IRS agents hired immediately but it’s reasonable to believe that 16,000 would be welcomed aboard over the initial ten year period, it will be offset by retirements and other factors of attrition, nevertheless 1600 hires in any year sounds about right. nyp10025 is spreading it a bit thick that the extra hires are needed to handle Obama’s spread the wealth to the needy policies, the first duty of the IRS is to collect, not to dole out, doling out comes under the heavy, and heady, responsibilities of the president and his compliant Congress. Really, nyp10025, which of our Nevada members of Congress do you work for, I’m betting the position came about to respond to Mr. Mitchell’s site.

  34. Steve says:

    If thats so Vernon it is a very good thing for Mitch. Wouldn’t it then be a backfire?

  35. nyp10025 says:

    OK, so instead of saying that the healthcare law scarily provides for the hiring of 16,000 IRS agents, you guys are now reduced to “it’s reasonable to believe that 16,000 woulds be welcomed aboard over the initial ten year period, it will be offset by retirements and other dactors of attrition, nevertheless 1600 hires in any year sounds about right.”

    And where does that “1,600 each and every year, but, uh, offset by retirements and attrition” number come from? Thin air.

    Aren’t you embarrassed?

  36. nyp10025 says:

    I’m also struck by Mr. Clayson’s claim that a small business owner who gets a tax credit for sponsoring a health insurance plan for his employees is on the dole.

    I happen to disagree with that characterization.

  37. Thin air? Where do you think Obama got his projections, which the CBO keeps contradicting?

    ________________________________

  38. Steve says:

    Another example of “stability”

  39. Steve says:

    From those time stamps nyp may actually live in the eastern time zone.

  40. nyp10025 says:

    1. So no one can come up with a defense of the “1,600 IRS agents” lie that doesn’t sound instantly ridiculous.
    2. Instead, all Mr. Mitchell can do is snark about “Obama’s projections, which the CBO keeps contradicting.” First, there are no “Obama projections.” The projections the Administration relies upon come from the non-partisan CBO itself. So Mitchell’s point makes not sense at all. Second, the CBO hasn’t “contradicted” either itself or President Obama’s projections. In fact, the most recent, updated CBO analysis shows that ObamneyCare will cut the deficit by about $50 billion more than previously estimated. http://cbo.gov/publication/43076
    ““the insurance coverage provisions of the ACA will have a net cost of just under $1.1 trillion over the 2012–2021 period—about $50 billion less than the agencies’ March 2011 estimate.”

    What you will not find from the CBO is a statement that the ObamneyCare reforms provide for the hiring of 16,000 IRS agents. Because that would be a lie.

  41. nyp10025 says:

    So, is there anyone still willing to repeat “Robert’s” false accusation that “there are 16,000 new IRS agents??
    How about his false accusation that the law exempts Congress from its coverage provisions? Or that the law will be administered by the Office of the Surgeon General? Any takers?

  42. Steve says:

    I never made any of those assertions, why would I start now? All you had to do was post a politifact link.

    From the posts above you can my arguments were far more dificult to sway and on point too. You even had to agree it lacks a number of things. You disagree as to my way of correcting it because you like the one sided solution you got from your party. I say it needs to be tossed and re worked.

    You say “nope”

    To that I say again. June. One of us is likely to be unhappy with the outcome.

  43. Athos says:

    petey would have us believe the Ø regime has nothing but good intent for us poor little subjects. Why are you challenging him so? HE’S read the bill and the bill is GOOD!

    Conyers’ comment was for 2 lawyers to read the bill and explain it to him. (in two days?) I have TRIED to read some of this bill, and the legalize drives me crazy (like reading the Tax Code and trying to figure THAT one out). I would question whether ANYONE could properly identify what each statement really means (and could be agreed on) which sets up even MORE judical interprettation, and a call for MORE lawyers.

    If petey has, indeed, read the bill, (and not following the Davie-boy Plouffe “cliff notes”) than that would lead credence to the theory that he’s a poser. Or a plant.

  44. nyp10025 says:

    The statute books are filled with complex legislation. Try reading the ERISA laws front to back. But no one in their right mind would say that we shouldn’t have legislative protections of people’s pensions.
    The ObamneyCare statute is written in legalese because it has to fit into dozens of other pre-existing statutes. That’s why you read things like “subparagraph (d)(1)(ii) of section 1782 of chapter 37 is amended by inserting the word “not” before the word “certify.” That is how legislative drafting works. Maybe it did not work that way in the 18th century before electricity was discovered, but life is more complicated now. Most legislators are smart to rely on legislative summaries prepared by staff. On on the important conference committee reports.

    If you wish to read the law and/or comprehensive summaries of each section, go to healthcare.gov, and look for the “healthcare law” tab.

  45. Back in March 2010 before the bill passed, Republicans on the Ways and Means Committee warned that the bill could require the IRS to hire 16,000 additional agents to enforce the new rules. So it was not snatched out of thin air.

    Read more: http://www.nypost.com/p/news/national/now_the_TVLRWxc94TliCHb1UBYeBJ#ixzz1rksozRcj

    I doubt anyone can say with certainty what is going to be the actual number of agents or the total cost of ObamaCare or how many will lose coverage and whether Congress will create a Cadillac exchange for itself.

    Madison was better at seeing into the future — back in the days before electricity was discovered, Mr. Franklin? — than any of us. But I’ll place my bets on the over for cost and the under for coverage.

    ________________________________

  46. Steve says:

    Whats this??? I thought Øbamacare fixed it! nyp is certain nothing changes short of an asteroid slamming the planet so what is up with Harry Reid??

    “We have to do something on health care. If we don’t, by the year 2020, 35 percent of all the money we spend in America will be for health care,”

    http://www.lvrj.com/blogs/politics/Reid_says_Senate_wont_pass_House_climate_change_bill_immigration_a_priority_health_care_this_month.html

    Scroll to the bottom for the quote.

    Guess they have to fix it with Republican help in the house now…told you that bill was a stinker, scrap it and start over.

  47. Steve says:

    Serious whoops there that post in the RJ was from 2009. My bad.

  48. Athos says:

    If the government derives it’s powers from the consent of the governed, then we have to be able to read and comprehend the law. That would be a positive first step in restoring constitutional governance to the United States.

    “How long do politicians have to keep on promising heaven and delivering hell before people catch on, and stop getting swept away by rhetoric?” Thank you, Dr. Sowell, for stating the obvious.

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