Lawless: Obamacare and Federal Power

When referring to the nationalizing of medicine known as the Affordable Care Act, Speaker of the House Nancy Pelosi said, “We have to pass the law to see what’s in it.”

“[Law] is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated,” said Thomas Aquinas, defending the claim that promulgation is one of the essential characteristics of law (Summa Theologiae, Ia.IIae., q. 90, a. 4).

We should not suppose that promulgation is necessary only as a practical matter, since it is not possible to be certain that one is obeying the law unless one knows what the law is.  It is also necessary because law is meant for rational beings.  It is not something extrinsic to the lawgiver or the law-receiver, for “the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect” (q. 92, a.1), by the virtue it inculcates.  Since virtue is a habit in accord with reason, the law must be capable of entering into the minds of those who must obey it, not so that they may deliberate about it, since the deliberation will already have been completed, but so that they may order themselves by it.  For example, “the natural law is promulgated by the fact that God has instilled it into man’s mind so as to be known by him naturally” (q. 90, a.4).  Jonathan Swift understood the point, writing in Gulliver’s Travels of the well-governed Kingdom of Brobdingnag, whose laws could not exceed in words the number of letters in the alphabet, “wherein those people are not mercurial enough to discover above one interpretation.”

A law need not be clear in all of its particulars to every subject in the land.  But if no one can possibly know what the law entails, how can it be a law at all?  What power does it have as law if we must wait until a judge somewhere draws forth a mazy line of rhetorical deduction to arrive at the interpretation he preferred at the outset?  When even those who are charged with representing the people do not know the law because it runs to thousands of pages, with thousands more to come by way of regulations whose establishment the law requires?  Such a creature cannot appeal to reason, nor can it have been the rational work of those who are charged with making the law, nor can it ultimately be ordered to the common good, even in the unlikely case that it should prove to be generally beneficial, since the common good is also a good for rational beings and not for mere electoral matter.

But I think it is not enough to say that the Affordable Care Act is no law, by Thomas’s definition.  We must give the daft Speaker due credit.  So says Larry Arnn, president of Hillsdale College, in the most recent publication of the college’s newsletter, Imprimis.  For our representatives have long ceded to cadres of lawyers the writing of bills that no one can read, much less grasp in their entirety, and have ceded to bureaucrats the actual fleshing-out of the bills, so that indeed no one can possibly know what the law really is until that vast machinery of the executive power infuses it with blood and covers it with flesh, or rather with a triple armor of insulation against the chances and changes of electoral politics.  We still call them “laws,” and in some sense they are, since we have to obey them, just as in some sense a cancer cell is a cell and a part of the body, even though its aim is to devour it.

Such a system, President Arnn suggests, is like the Ring of Gyges that Socrates describes in Plato’s Republic.  The reader may recall the situation.  Socrates is having a conversation about justice with two young noblemen, Glaucon and his brother Adeimantus.  Glaucon has been pressing Socrates to defend the reality of justice against the gruff and sneering arguments of the sophist Thrasymachus, who says that “justice” is only the will of the strong.  What the king or the archon or the chief justice or the secretary says justice is, it is, and that is that.  “Conscience is but a word that cowards use,” cries Richard III on the morning of his disastrous battle at Bosworth Field, “invented first to keep the strong in awe!”  If the tyrant Richard and the tyrant-cuddler Thrasymachus are right, then all our inveighing against the injustice or indeed the illegality of the monstrous things that now go by the name of “law” are all so much futile waste of breath.

So Socrates tells a story about Gyges, a shepherd, a nobody, who one day found a ring with a special property.  If he placed it on his finger and turned it one way, he became invisible.  If he turned it the other way, he became visible again.  Gyges took stock of the stroke of luck, and used the ring to seduce the queen, kill the king, and become ruler of the realm in his place.  The question is, “If we could do what we will and get away with it, if in effect we had a Ring of Gyges, what should we do?  What would ‘law’ or ‘justice’ mean to someone with that insuperable advantage?”

Arnn’s point is that government by bureaucracy, by lawyers litigating the details of any one of the hundreds of thousands of regulations in the Federal Register, or by judges who themselves cannot possibly read or comprehend the laws upon which they are to pass judgment, functions as an all-encompassing Ring of Gyges.  No one knows what the lawmakers, that is, the hundreds and hundreds of thousands of secretaries and undersecretaries in departments and offices at all levels of government, are doing, or even who they are.  The lawmakers themselves do not know what they in the aggregate are doing, or who they are.  They might be, individually, as virtuous as Socrates; but they would still be not transparent, but invisible, impossible to see.

And how likely is it that they will be as virtuous as Socrates?  For they cannot be wholly unaware of their privileged position.  Does anyone know the whole of the IRS’s actions?  Can anyone know it?  If an IRS commissar sends a vaguely worded obliviscendum to an underling, to the effect that certain people engaged in certain political activities might merit a somewhat more acute investigation of their businesses and their charitable donations, who is to know?  A paper trail is almost meaningless when you are suffocating under an ocean of paper.  It is not that the paper trail leads nowhere.  It leads anywhere and everywhere.  It is not that there is but one possible trail.  There are innumerable possible trails.  And I do mean innumerable.  The factorial function comes into play: one department chief multiplied by two aides, three secretaries, four division chiefs, five division assistants, six subdivision heads, seven liaisons, eight coordinators, nine principals and ten people on the ground—a tangle among only ten strata, gives you the number 10!, which is 3,628,000.  The number 20!, I believe, is greater than the number of stars in the universe.

The devil is in the details, as the saying goes.  Such a system leaves all the details up to bureaucratic devils, with a vast field of play, and virtually no accountability.  It is a Ring of Gyges.

What can citizens do about it?  Nothing at all, unless they begin to recognize what it is: Jabba the State, I call it.  It knows no limits.  It has a diseased life of its own.  It shares its prime directive with all creatures, including cancers: it must survive.  Its second directive is like unto the first: it must grow, and reproduce.  It appears to be run by the people, but that is a bad joke; the people, no matter how they cast their vote, are afraid of it, and believe it capable of all evil.  It has more influence over what enters the mind of a child—your child, reader—than the King of England in the Middle Ages had over anything at all, including the customs duties that filled his coffers and the military escapades of his own dukes and earls.

It retains the outward show of a democratic republic, and indeed makes a noisier display of democratic machinery, such as elections, than ever before.  But it is not a democratic republic.  It is something else.  Its tentacles are legion, and they strike deep.

Anthony Esolen

By

Professor Esolen is a teaching fellow and writer in residence at Thomas More College of the Liberal Arts, in Merrimack, New Hampshire. Dr. Esolen is a regular contributor to Crisis Magazine and the author of many books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013). His most recent books are Reclaiming Catholic Social Teaching (Sophia Institute Press, 2014); Defending Marriage (Tan Books, 2014); Life Under Compulsion (ISI Books, 2015); and Out of the Ashes (Regnery, 2017).

  • Michael Paterson-Seymour

    Jean-Étienne-Marie Portalis, a great Catholic jurist and one of the authors of the Code Napoléon observed that

    “A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad outline, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.”

    • Barry Penobscott

      Michael, was this the Supreme Court thought process which gave us the Dred Scott decision? H.L. Mencken stated that a judge is a law student who grades his own exam papers.

      • Guest

        Exactly. The law is whatever some guy/girl in a black dress say it is any any point in time. That is why we need good Catholics in these positions.

      • Adam__Baum

        and Dred Scott, Buck v. Bell, Korematsu, Kelo v. New London, Lawrence v. Texas, NFIB v. Sebelius.. and a myriad of other travesties that make it clear that for all their letters and pretense, their craft is a dark art, ranking with sorcery and alchemy.

    • Adam__Baum

      Fantastic. What does this unbridled faith in a wise, benevolent and incorruptible judiciary have to do with the modern administrative superstate and it innumerable and exacting fiats?

      • Michael Paterson-Seymour

        You overlook the coordinate rôle that Portalis assigns to the jurists [les jurisconsulte] – the commentators, test-book writers and professors.

        Having lived through the Revolution, he observes that “”We have too much indulged, in recent times, in changes and reforms, if in matters of institutions and laws the periods of ignorance witness abuses, the periods of philosophy and enlightenment too often witness excesses.” Hence, “one ought to be chary of innovation in matters of legislation, for if it is possible, in a new institution, to calculate the merits that theory may promise us, it is not possible to know all the disadvantages, which only experience will reveal; that the good ought to be kept if the better is dubious; that in correcting abuses, one must also foresee the dangers of the correction itself…”

        That is why legislators ought to stick to broad outlines and general principles.

        • Adam__Baum

          If they ” stick to broad outlines and general principles”, but intervene in every aspect of life and create and empower a massive administrative apparatus under the executive, to issue ceaseless and innumerable regulations, this injunction goes from difficult to meaningless.

  • hombre111

    Nationalizing of medical care? Hardly. The big insurance companies still reap their profits. But Anthony, with millions without any health care and all that implies, with a health catastrophe the number one cause of bankruptcy, exactly what is your solution? Why do you want to leave so many in desperation? Canada and Europe have found the solution. Their people do not live in the fear that Americans, especially the poor, take for granted.

    • AcceptingReality

      Hmmm….would I rather be euthanized or bankrupt? Tough call!

    • msmischief

      Leaving aside that the number of medical bankruptcies is intentionally inflated by those who compile such stats — I will mention that those that ARE medical bankruptcies spring overwhelmingly from lost wages, not medical bills.

    • Art Deco

      But Anthony, with millions without any health care and all that implies,
      with a health catastrophe the number one cause of bankruptcy, exactly
      what is your solution?

      The mess about medical bankruptcies is nonsense. A certain portion of bankrupts have medical bills co-incident with their other debts. I have seen one such study in question and the subcategory of bankrupts had a mean of $18,000 in medical debts. You can buy a five year old Carolla for $12,000.

    • Art Deco

      The big insurance companies still reap their profits.

      Insurance companies account for 2.4% of gross output in this country and 2.6% of value added. They are not doing notably better than any other industry. (Someone once said of Ramsey Clark that he seemed to think it vulgar for a business to make a profit. I see what they meant).

    • Adam__Baum

      “The big insurance companies still reap their profits. ”

      http://voices.washingtonpost.com/ezra-klein/2011/02/health-insurance_industry_stil.html

      Wow, this is such nonsense that even one of the leading voices of the left explodes it.

      This will however change under Obamacare.

      http://www.forbes.com/sites/brucejapsen/2013/10/26/despite-glitches-obamacare-profit-windfall-to-insurers-well-underway/

      Suckazzz….

    • thebigdog

      “millions without any health care”

      Still don’t understand the difference between health “insurance” and health “care”? Poor Hombre, still doesn’t know why God gave us two ears, two eyes and only one mouth.

    • Objectivetruth

      Name me one person that has walked in to a hospital, ER, or clinic without insurance in the USA that has told them to ” beat it…..we’re not taking care of you.”

      • hombre111

        Happens all the time. In one city near me, for instance, the for profit hospital run by doctors will routinely send such patients over to the county hospital.

        • Adam__Baum

          God you are a degenerate. That’s not denying care. There are a myriad of reasons to send people to other facilities, including a need to maintain adequate capacity and resources.

          Until you don’t accept a salary stop complaining about others’ profits.

          • hombre111

            You have to prove that you are right. Go into a hospital, ask for care, tell them you have no insurance, and see what happens.

            • Objectivetruth

              Go sit in your local emergency room. Notice how many of the patients are non citizens, without insurance. Count how many are turned away and not treated (to save you the time…..the answer is zero. None will be turned away.) they’ll receive a bill in the mail that won’t be paid (indirectly, it will be paid by me when my family and I need to go to the hospital, see above.) it’s the game.

              • hombre111

                The kind of care they will get will not be the kind of care you get.

            • Adam__Baum

              My wife goes into a hospital four days a week, so I know what happens. I was a Medicare/Medicaid auditor. I don’t have time for fantasies concocted behind a computer.

      • hombre111

        Next time you or a family member suffers a serious illness, go into any hospital, ask for care, tell them you are poor and have no insurance, and see what happens.

        • Objectivetruth

          My son had an overnight hospital stay in early December, sharing the room with another boy. I have private health insurance, while the other little boy was on Medicaid (and with expanded Medicaid, NO poor out there does without insurance coverage.) Both boys received equal, fantastic care. I just received the bill, and after my insurance companie’s portion, I will owe $2968 (My premiums are $540/month.) The boy on Medicaid’s family pays zero $ premiums, and have to pay nothing out of pocket.

          Repeat: the poor boy in my sons room was NOT turned away, easily got on the Medicaid roles, received incredible care, and it did not cost his father and mother a dime.

          While I have to figure out how I’m going to pay $2968.

          Get it?

    • Deacon Ed Peitler

      You inhabit a strange world indeed. Beam me up, Scotty.

      • hombre111

        You say you work with the poor, but I am no longer sure. I work with St. Vincent de Paul, and we see tragedies all the time. When we don’t have the resources to help, it is very, very difficult to get someone else to step in.

        • Deacon Ed Peitler

          I don’t feel compelled to offer you my bona fides regarding my work for the poor.

          I am afraid that you work from a deficit model. There is no limit to what God can do working through the likes of you and me, Father.

          • hombre111

            I didn’t say I wanted your bona fides. But all in all, your attitude toward the poor and their struggle puzzles me enough to wonder whether or how you do what you say you are doing.
            Those who work from a cup-is-overflowing model, like me, are appalled to see all the ways our society keeps the overflow going uphill to the richest among us. Religious people alone cannot support the desperate need, as the leaders of Catholic Charities and other large scale charitable organizations have repeatedly insisted. Both Pope Benedict and Pope Francis have said there is a role for government.

  • uncle max

    This monstrosity has its 4th birthday coming up in a few months.

    It was passed with not a single Republican vote.

    The Speaker of the House said “we had to pass it to see what’s in it.”

    3 1/2 years after its passage when it’s supposed to go into operation – not going to happen. They can’t even get a working website going after having THREE AND A HALF YEARS to do so.

    “We had to pass it to see what’s in it.”

    The democrats are talking talking talking and then talking some more, all in the lessening hope that they can divert public attention from one inescapable fact – this baby is THEIRS. They OWN it.

  • Lee Anne Bruce

    Until, of course, euthenasia becomes more widespread and somebody decides that it is an actual medical treatment. Instead, of a horrible option.

    • Adam__Baum

      Welcome to “Logan’s Run”.

    • Objectivetruth

      That will be coming. Kathleen Sebelius and HHS has officially declared pregnancy a “preventable disease.” Protestantism has essentially sold the public on we are all definitely going to heaven no matter what life we lead, so why suffer illness here on earth any longer when I can get to the eternal country club in the sky?

  • Tony

    The point is that these “laws” are different in kind from laws in the past. We are no longer a nation of laws, but a nation of managers. A judge in the past could apply a statute to a given situation, by determining as best he could the mind of the lawmaker. But that is now an absurdity. There is no mind — there can be none. Scale matters.
    On the specifics of health insurance: I have plenty of second-hand experience with Canada’s system, because we have lived in Canada every summer for the last ten years (and two fall sabbatical semesters, besides). We have many friends who can’t get medical care because of the extraordinary rationing by way of lists; a good friend who cannot work anymore because of back pain recently told the nurse who called her on the phone to make her yearly check that she might as well not bother, because, as she put it, “By the time you people get me to see an orthopedist, I won’t need one!” When the nurse, playing dumb, pretended not to know what she meant, she blurted out, “I’ll be dead, that’s why!” She has been on a waiting list since 2007. Another good friend, also frustrated by the interminable wait, feigned an emergency in the hospital’s lobby and finally got seen. There are constant shortages of doctors and nurses, because the system keeps their pay down.
    I believe that we could have seen all kinds of systems for extending health insurance (not the same as health care, which is already guaranteed) to everyone who wanted it, without involving the IRS and HHS. If indeed the Swedish system works (it doesn’t, really; try to get ordinary over-the-counter drugs in Sweden after the government took over all the pharmacies), then why could we not have 50 of them in the United States? For the population of Sweden is only about that of a single average state in the US. Why could not large and diverse groups of people, such as Catholics or Methodists, or Shriners, or whatnot, establish their own medical systems? Something on that order was afoot a hundred years ago, and was shunted away by the accidents of history; the attempt by employers to reward their workers with benefits without subjecting them to onerous taxes.
    The ACA will probably shut down all kinds of innovative attempts by doctors and groups of patients to provide health care in ways that are more efficient than what we’ve gotten used to … I have never seen an efficient bureaucracy; there is an in-built directive, in all bureaucracies, to survive by inefficiency.

    • Deacon Ed Peitler

      I predict that healthcare will eventually be taken offshore to private clinics. Hopefully, this will be provided by Catholic physicians, nurses and others whose sense of charity will make it available to more than just those with the financial wherewithal to access it. Government can thwart the will of the people for just so long and then….

      • hombre111

        And the poor will have the $$$ to afford that kind of care? As it is, even after ACA, millions have no access to insurance, ergo no access to real health care. This is rationing on the crudest scale.

        • Deacon Ed Peitler

          No, good Catholics like yourself will make it their business to see that the poor access the same healthcare.

          Look, you think there are really poor people in the US. That’s only until you see the REALLY poor elsewhere in places where I imagine health care resources will be forced to emigrate to because of the tyrannical hand of your government. Then, practitioners with well formed consciences will extend those services to others as well. This was the history of healthcare in the USA.

          You can bet that if have begun thinking about the export of elective health care services from the USA to other countries, others have already begun to implement plans for it. Just remember that your government can suppress freedom just so far until people seek alternative places to live. Government interference in our lives will only continue until tolerable limits are reached.

          • hombre111

            The poorest of the poor have no access to ACA. They still get their care through emergency rooms or stand in line at free health clinics. Saw this on CNN the other day…hundreds lined up in West Virginia for the occasional arrival of volunteer doctors and nurses. Since the poor pay the final price of our capitalist system, with its countless losers and a few spectacular winners, the system owes them better than that. But of course, capitalism is about money, not conscience.
            As for the really poor in other countries? I spent years in Colombia, in barrios where half the kids were dead before the age of five. Elective health care services will not emigrate to those places, but to the downtown, where the health tourists can stay at good hotels and at hospitals with state of the art facilities. This is already happening in places like Mexico and other developing countries. With the marginados, it will be life as usual.

            • Adam__Baum

              “Millions of the poorest of the poor still have no access to ACA.”

              But still you use your rhetorical cudgel to fashion a great golden calf. It’s too bad you don’t have as much patience with John Paul II as you do with Barack Obama.

  • crakpot

    Thomas Aquinas had it wrong; George Washington had it right:

    “Government is not reason, it is not eloquence, it is force – Like fire, it makes a dangerous servant, and a fearful master.”

    This use of force might at best be just, and for that there are two conditions: 1) It must be used solely to help secure the rights God gave to each of us as an individual (which the so-called “common good” often tramples), and 2) It must have the true consent of those truly governed by it (not made by “him who has care of the community”).

    Obamacare is a regulation, a police power, and it fails both conditions – it is unjust. The governed who [unanimously] consented to the powers in the Constitution knew this would happen, so they insisted on certain specific prohibitions on the uses of those powers. We need to bring the protections of our Bill of Rights to bear whenever anyone is facing the use of government force against him, not just criminals.

  • WRBaker

    “We have to pass the law to see what’s in it.” The people of San Francisco who keep electing Pelosi should have their heads examined for reelecting such a nincompoop. (Please pass a law that gives me $1million a day and then look at the law afterwards.) And why hasn’t the archbishop of San Francisco imposed Canon 915 on this woman who knows the Magisterium even better than the pope and all the other bishops?
    All three branches of government are populated with idiots. As for the bishops…

    • Deacon Ed Peitler

      One can only conclude that the electorate of Nancy’s SF district are similarly nincompoops (but there are ample better descriptors that will remain private i.e. until the NSA is able to identify what’s on one’s mind).

  • W Meyer

    I have, for some years now, likened our Federal government to a stage 4 cancer. I think that with the enactment of Obamacare, the cancer has matastasized to all essential areas of the body, our country.It is not clear to me that any cure is possible. The time for palliative care is upon us.

  • FrankW

    This is the best explanation I have seen yet as to why the fear of government is on the rise. The government has no conscience keeping it in check. It is a massive bureaucracy that continues to consume everything in its path without regard to the consequences.

    You need healthcare? Well, let the government set the rules and limit your choices based on what they think is best for you. Regliious objections? How dare you question the government’s decisions!? We’ll see your in court, and our newly stacked DC Court of appeals will render the correct judgment. The problem with our nation now is that there are too many citizens willing to accept these premises.

    Let’s say tomorrow, our President declares that we have a hunger crisis, and too many of our children are starving. He will impose a new tax to address this crisis. All American citizens must, if they want to walk on our streets and sidewalks, purchase a walking license, at an annual fee of $25, and that money will be used to address this crisis. The problem with America today is that there are too many of our citizens who would not think twice about surrendering their freedom, and immediately going out and paying that fee to obtain their license.

    Our nation is being lulled into surrendering freedom in exchange for a false sense of security. We will end up with neither (freedom or security) if this trend is not reversed.

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