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The Lawlessness of Obama­care

King Rex meets King Barack.

Nov 18, 2013, Vol. 19, No. 10 • By ERIC FELTEN
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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.

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