Before talking about the need for limited government as a constitutional ideal for ensuring the Republic’s sustainability, it’s important to see where we’re at now and how we got here.

A Comparison with Ancient History

Being a religious scholar, I can easily draw a comparison to the Jewish faith and practice. God laid out the fundamental laws in the Ten Commandments, and the Scriptures after that lay out “case law” to clarify the correct judgments, punishments, and restitutions when the fundamental laws are violated. With respect to jurisprudence, then, this can be compared to our vast collection of court cases that establish “precedence” for similar situations that follow.

With respect to the legislative aspect, we have very little “codified” law in the Scriptures. What the Jews did was build a “hedge” around the law called The Mishnah, codified in the late first or early second century AD. This was a record of the debate among leading Rabbinical scholars of that era, informed by years of written and oral tradition, of what actions should or should not be considered violations of the Ten Commandments generally, and of the Torah specifically.

Modern Law and Rulemaking

This codification can be compared to our modern law and rulemaking process. It is not enough to pass a law. America has a somewhat convoluted process of implementing that law, so much so that “the people” are taken out of the equation.

Many in my generation remember “I’m Just a Bill,” the Schoolhouse Rock song. It’s a fairly accurate, albeit oversimplified summary of the process of introducing and passing legislation. But as I hinted above, that is only the tip of the iceberg for the legislative process. If you’ve ever read the text of a law, you will have seen that there is much language about editing, adding to, or deleting certain sections of the U.S. Code, the official codification of U.S. law.

But the U.S. Code does not offer much in the way of specifics to implement and enforce the law. That’s where rulemaking comes in. Since I work in the area of Medicare policy and education, let me take an example from that.

Section 3022 of the Patient Protection and Affordable Care Act (Obamacare) authorizes the “Medicare Shared Savings Program.” This is one of the better aspects of Obamacare in my opinion, because it offers incentives for providers and provider groups to work together to reduce costs in Medicare. If you go to the place where that section of the law is, you will see that the law adds a section to the end of Title XVIII of the Social Security Act (the Title that governs Medicare) and, in the margin note, you will see the corresponding section in the U.S. Code is (Title) 42 USC 1395jjj. The same language will appear in both places once the edits are applied.

Notice the first line of the added section: “the Secretary shall establish.” This line authorizes the Secretary of Health and Human Services to take the steps necessary to create the new Shared Savings Program. This usually means the Secretary will charge, in this case, the director of the Centers for Medicare & Medicaid Services (CMS) to direct their employees to come up with the nuts and bolts of the plan. The law itself lays out several parameters that they must abide by, but the specifics are left up to those who are going to draft the official “regulations” (= rules) for the program and implement them in the Code of Federal Regulations (CFR), including the size of the incentive payments.

CMS prepares a “proposed final rule” that is then published in the Federal Register, and they invite the public to comment on the proposed rule for two or three months. The proposed final rule is not just the text of the regulations they want to add; it contains a lengthy narrative justifying why they wrote it the way they did and how it may intersect with other aspects of Medicare. Once the comment period is closed, CMS then processes the comments, decides whether any are significant enough to modify the proposed regulations, then publishes a final rule implementing the law in the 42 CFR sec. 425. In this case, the rule was amended in 2015, and then, in the midst of a 1400-page final rule (in manuscript form) on the Physician’s Fee Schedule (released 11/15/2016 in the Federal Register), there were a few pages that described more changes to the Shared Savings Program. In this case, unless you went looking for these changes, most people would have never known they were in there! It’s like finding a needle in a haystack sometimes just to keep up to date.

This final rule summarizes the comments CMS received and their responses to the comments, which more often than not take the tone of “Thank you for your comment; we hear you, but we’re going to do it our way for now.” In a few cases, strong professional groups are able to lobby for certain changes, especially if they propose their own language instead of merely being critical of CMS’ proposed language.

So imagine multiplying this over the thousands of government agencies in the dozens of Departments the United States government operates, and you begin to get a sense of the polylithic bureaucracy that is Washington, D.C. At some point, we need to ask ourselves as a country if all this effort is worth it. This is how government gets their fingers into every aspect of our lives, and it’s nearly impossible to get away from it. I think our founding fathers are turning over in their graves with all these rules and regulations; and they certainly don’t like it that States, through these processes, have gradually been forfeiting their rights to Federal structure.

I do not believe America can sustain itself with an ever-burgeoning bureaucracy (= a government that gets bigger and more intrusive each passing day). I believe this is why President-Elect Trump was so successful with his message. It’s time to simplify things again; give the States and the people more freedom to live their lives, not more regulations from a nanny government that has a false sense of its own self-importance and a false presumption that they know what’s best for us.

Scott Stocking

My views are my own.


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