Thursday, June 20, 2013

Comprehensive Immigration Reform and the Rule of Law (Part I)


I begin with a brief reprise of a subject about which I have written at length [1] -- the pernicious consequences of any comprehensive reform. I have argued always for incremental reform. Comprehensive reform – by its nature – has two serious weaknesses. The first is hubris; the second, obfuscation and legal murkiness that creates the certainty of mischief.
Comprehensive solutions seem to be favored by lawmakers when the problems being addressed are extremely complex in the sense that they cross and re-cross all the lines of politics, economics and social systems. Legislative technocrats appear to be convinced, a priori, that difficult, intractable problems are best approached by utopian visions built upon mountains of elitist egotism combined with the sanctimony of good intentions. It does not occur to these legislators that some problems, taken whole, are too much for human beings to comprehend. That there are components of chaos theory in human systems that simply do not allow for prediction from poorly-understood initial conditions. Hubris.

Bad Law
The way that laws are written – dating from the Seventies [2] – are an invitation to mischief, if not outright criminality by government. The language of the law has become so complicated, legalistically self-referential, defensive against possible upsets by case law, present and future, that it eventually surpasses understanding. But there are great advantages for bureaucrats who would abuse and consolidate government power. If the law cannot be understood, its meaning becomes what regulators, prosecutors and judges say it is. One has only to look at tax law, EPA regulations and SEC decisions to understand that law has been snatched away from the scales of justice and put into the hands of men.

A couple of examples of the dangers in comprehensive legislation might be the obscenely expensive Stimulus bill of 2009 (in excess of 100 pages -- where did the money actually go?) or “Affordable Healthcare” law (we passed it but still don’t know what’s in its 1990 pages). Another worth considering is the Dodd Frank Law of 2010 (846 pages), which arguably had to be written because the Sarbanes Oxley Law of 2002 (66 pages) was not enforced. What these laws – and so many others – have in common is the mystery of implementation. When various regulatory and enforcement agency bureaucrats are done, thousands more pages will have been appended, and when the laws are ultimately applied they will hardly resemble the intent of congress (to the extent that congress understood what that was at the time). Costs will have increased by orders of magnitude, bureaucrats (the permanent government) will have accrued more power and special interests will have been rewarded.

To put the matter into perspective I like to compare, say, the Affordable Care Act – thousands of pages and growing that comprehends the relatively narrow subject of healthcare in America – with the all-encompassing law of the land. The Constitution and all its amendments, along with the Declaration of Independence, can be printed in a small pamphlet that fits comfortably in a shirt pocket. Please consider all that the fact implies.

In my view legislation should be written in language that can be understood by a college junior (an eighth-grader of fifty years ago), and it should be limited to ten or twenty pages in length (or some modest length as might be derived from good practice. Impossible? You may well ask. But if laws are deliberately limited in scope to address discrete problems ad hoc, language can be simplified and scope reduced. Goals to aspire to.

Faced with choice of evils – hubris and badly-written law – the latter is easily the greater peril to the republic because it opens (has opened) the way for the dissolution of the rule of law.

Which, in the end, is the most serious structural [3] threat America faces. Without the deliberate application of the rule of law the triumph of tyranny is inevitable.

Y ------------------
1.  Two posts deal with the evolution (or devolution) in the way laws are written.  Part I is brief and largely based on Philip K. Howard's Death of Common Sense, and Part II analyzes the pernicious effects of comprehensive legislation..  A third post (the best place for an interested reader to begin) deals more specifically with the easy abuse of comprehensive legislation by central planners and big-government agents in pursuit of power.
2.  See Philip K. Howard, ibid.
3.  I say structural because at the root of the problem is a wholesale, institutional rejection -- mostly but not exclusively on the Left -- of virtue, defined as the willing, good-faith mutual embrace of the rules of civil society.

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