Arbitrary Power, Dictatorship, and Health Care

Arbitrary Power, Dictatorship, and Health Care

Posted By John David Lewis On December 22, 2009 at Pajamasmedia.com


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.

Officials may gather whatever taxpayer information they decide is necessary. “The secretary shall collect such data as may be required to establish premiums and payment rates for the public health insurance option and for other purposes under this subtitle -- (Sec. 321). Section 412 requires employers to submit “such information as the commissioner may require” to multiple federal agencies.

The bill institutionalizes such coercions by establishing over one hundred new commissioners, boards, committees, and programs, each with its own area of control. (For a list, see here.)

America is not a dictatorship. These bills are available for us to read, and we are able to discuss them openly, to agree or to disagree, and to speak and write about them in forums both public and private. But we will not be free to escape either the regulations which a faceless bureaucracy will write in order to enforce its edicts, or the decisions made by such bureaucrats over our lives.

If you are an employer, you will not escape punishment if a bureaucrat decides that your health plan is not “acceptable” and that you must be fined for your failure to meet his decision. If you are an individual who does not want to purchase full-coverage health insurance, but would rather buy catastrophic insurance that covers hospitalization only, your decision will not be “acceptable” and you may face a government audit and a new tax.

Do you have a serious disease? Does your doctor wish to readmit you to the hospital? A bureaucrat will decide whether or not you get treatment, based on a statistical analysis of the number of such readmissions by the bureaucrats: “excess readmissions shall not include readmissions for an applicable condition for which there are fewer than a minimum number (as determined by the secretary) of discharges for such applicable condition for the applicable period and such hospital” (Sec. 1151).

The scope of power here extends to the very definitions of terms within the law. This leaves the meaning of the law fluid and subject to the will of the bureaucrats. Section 1151 continues: “The term ‘applicable condition’ means, subject to subparagraph (B), a condition or procedure selected by the secretary among conditions and procedures for which (i) readmissions (as defined in subparagraph (E)) that represent conditions or procedures that are high volume or high expenditures under this title (or other criteria specified by the secretary).”

No, America is not yet a dictatorship. But we can ask ourselves whether the essence of such a dictatorship -- and its institutional foundations -- are not being built into federal law now. The scope of action available to federal administrators is widening today at a blinding speed. No proper reform of health care -- or any other area of life -- can be accomplished by the progressive, open-ended empowerment of government officials against defenseless American citizens.

Dr. John David Lewis is Visiting Associate Professor in the Philosophy, Politics and Economics Program at Duke University. His most recent book is Nothing Less than Victory: Decisive Wars and the Lessons of History (Princeton, 2010). His website is johndavidlewis.com

[Blogger's Note] Interesting way to look at it.