It may have been the worst moment for Jay Carney in what was a very bad press briefing. The president’s spokesman was fumbling his way through the administration’s justifications for the catastrophic Obamacare rollout when ABC’s Jonathan Karl pressed him about the fines the law imposes on the uninsured. People can’t currently enroll and, Karl said with some disbelief, “You are going to charge people a fine for not enrolling.”
Carney went into a rambling filibuster (Washington Rule #168: The longer it takes to answer a question, the less likely it is to be a real answer). He acknowledged, using an overly optimistic verb tense, “problems that have existed on the website.” He offered a dissertation on the shopping habits of consumers. He explained, “Our focus is on making the Affordable Care Act work . . . not on figuring out who is to blame.”
Somewhere in the midst of all this, Carney allowed that “people who do not have access to affordable care,” whether because of problems with the website, the dereliction of state governments, or “due to other factors, will not be penalized.”
Karl sought clarity—“So, if the website is not fixed, will people still have to pay the fine?” Carney dodged: “We are way still early in the process.”
The correct answer, of course, would have been that if it is impossible to obey a law, one can’t be punished for breaking it. It’s not just common sense, but a fundamental principle of law—or as the late legal philosopher Lon L. Fuller put it, “laws requiring the impossible” aren’t laws at all. They violate “the morality that makes law possible.”
Fuller, who taught jurisprudence at Harvard Law School midcentury, famously took on the legal-positivist notion that law had nothing to do with morality. But instead of arguing the old-fashioned view that the contents of some laws were properly rooted in moral commands, Fuller argued there was a different sort of morality at work in the law—that for a rule to bind us in any legitimate way, it has to be consistent with the “internal morality of law.” Requiring the impossible fails to meet that internal morality, and Fuller identified seven other ways a would-be legislator could fail to make law—failures that will be familiar to anyone who has followed the Obamacare saga.
Fuller illustrated the internal morality of the law allegorically, telling a parable about “the unhappy reign of a monarch who bore the convenient, but not very imaginative” name King Rex. A zealous reformer, Rex ascended the throne convinced that his legal system needed to be transformed. He aspired “to make his name in history as a great lawgiver.” It would be his fate to fail—epically.
His first act was “the immediate repeal of all existing law.” Instead of a fussy and tiresome set of rules, Rex “announced to his subjects that henceforth he would act as a judge in any disputes that might arise among them.” Not only did that leave the people without any rules on which to base their behavior, Rex turned out to be utterly inconsistent in his judgments. People, the king discovered, were unhappy with this.
For his second try, Rex wrote out a set of rules, but to avoid sniping and second-guessing (Rex was a bit thin-skinned), he declared that the text of this new code would remain a state secret. He was surprised to find his subjects considered it “unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.”
By now the peevishly ambitious Rex was becoming annoyed with his subjects, who were insufficiently grateful for his many exertions. And so there was nothing to be done but to publish the code. Which is when the people discovered that their monarch’s new set of rules was “a masterpiece of obscurity.” Not a single sentence could be understood by even the most skilled lawyer, let alone the average citizen. Protesters showed up outside the palace with signs reading “How can anyone follow a rule that nobody can understand?”
So Rex went back to work and, with a growing grudge against his subjects, “decided to teach them a lesson and put an end to their carping.” The new code required that a citizen “summoned to the throne” arrive in 10 seconds. The crime of coughing or sneezing in front of the king was punishable by 10 years of hard time. “It was made treason not to understand, believe in and correctly profess the doctrine of evolutionary, democratic redemption.” This enumeration of impossibilities was met with near-revolution as the bewildered public wailed (pace Carney), “A command that cannot be obeyed serves no end but confusion, fear and chaos.”
Eager to avoid mutinous unpleasantness, Rex tried again, this time with the help of experts. His legal advisers delivered a clear and coherent set of rules that could be followed. But they couldn’t leave well enough alone and every day issued a slate of revisions and amendments. Unable to keep up with the relentless changes, the public was as bewildered and bitter as before.
Frustrated with the whole business, Rex went back to ruling from the throne. The code (with all its changes) was still in place, but the king simply ignored it in making his judicial decisions. The public again was spurred to near revolt, at which point Rex gave up the ghost, “old before his time and deeply disillusioned with his subjects.”
With his story of the hopelessly inept King Rex, Lon L. Fuller identifies what he called the “Eight Ways to Fail to Make Law.” They are (1) ad-hockery, (2) secrecy, (3) retroactivity, (4) incomprehensibility, (5) irreconcilable inconsistencies, (6) impossibility, (7) unsettled changeability, and (8) capriciousness.
Obamacare is hardly the first modern legislation to run afoul of Fuller’s rules, but it is impressive in just how many failures of lawmaking it packs into one big bundle. There is the ad-hoc, capricious suspension of rules, as when the administration announced it was putting off the employer mandate for a year. There is the incomprehensibility of a law consisting of half-a-million words, a bewilderment compounded with thousands of pages of administrative rules. Nor is there any end in sight for the writing of Obamacare rules, which means the law will be unsettled and unpredictable for years to come. And don’t forget the possibility of impossibility.
Fuller was enough of a legal anthropologist to recognize that the internal morality of the law is often—all too often—ignored or overlooked. He noted that the basic notions of fairness are so fundamental that they aren’t addressed explicitly even in constitutions. “One of the most obvious things about a law is that there ought to be some way for the citizen to find out what it says,” Fuller wrote, “yet the Constitution of the United States contains no provisions requiring the publication of laws.”
Do such absences mean that, in a constitutional system, the internal morality of law isn’t binding on judges and lawmakers? Hardly. “The writing of constitutions becomes impossible unless the draftsman can assume that the legislator shares with him some implicit notions of the limits of legal decency and sanity.”
It is one of the gravest flaws of modern lawmaking that legislators give so little thought to the status of laws as law. If the votes and the procedure can be found to get a bill through, and if enough judges can be found to consent, goes modern thinking, then what else is there to ask about the legitimacy of a law?
As poor old Rex discovered, plenty.
Eric Felten is a writer in Washington, D.C. His most recent book is Loyalty: The Vexing Virtue.