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Arbitrary Power, Dictatorship, and Health Care

Is the essence of dictatorship — and its institutional foundations — now being built into federal law?

by
John David Lewis

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December 22, 2009 - 12:08 am
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The essence of a dictator’s method is not to write harsh laws and enforce them rigidly. The world’s most destructive thugs have wanted something different. They have wanted to impose their wills on a compliant populace using arbitrary power — power not limited by laws or constitution, but power that was open-ended, ill-defined, and could be expanded based on the whims of the moment.

Well-written laws are the enemy of the dictator. As philosopher Ayn Rand put it, “When men are united by ideas, i.e., by explicit principles, there is no room for favors, whims, or arbitrary power: the principles serve as an objective criterion for determining actions and for judging men, whether leaders or members.” Laws, properly formulated, are based on principles, and serve to translate those principles into firm criteria for judging particular cases. What a dictator wants is to be free of such principles and to use his power as he wishes.

This provides a good basis for judging legislation today. Does a law or a bill constrain the power of officials — both elected and appointed — by the principles of the law? Or does it empower the officials to define the meaning of the law as they wish, to apply it in an open-ended manner, and to write regulations in order to expand their power?

Consider one example today: H.R. 3962, the ‘‘Affordable Health Care for America Act” recently passed by the House of Representatives. Even a summary perusal of its 1,990 pages shows an enormous scope for arbitrary definitions, applications, and regulations according to the decisions of unelected administrators. Here are a few passages to illustrate:

To determine what constitutes the “satisfaction of health care coverage participation requirements” under the 1974 ERISA rules, “the secretary may promulgate any interim final rules as the secretary determines are appropriate to carry out this part” (Sec. 421). Readers of the bill who try to discover what constitutes an “interim final rule” will find that this is up to the secretary — i.e., the bureaucrats — to determine.

With respect to the so-called “temporary high-risk pool program,” a program to be run until the so-called health care exchanges are established: “If the secretary estimates for any fiscal year that the aggregate amounts available for payment of expenses of the high-risk pool will be less than the amount of the expenses, the secretary shall make such adjustments as are necessary to eliminate such deficit, including reducing benefits, increasing premiums, or establishing waiting lists” (Sec. 101). Who gets care, and what it will cost, will be up to the secretary.

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