Tuesday, August 18, 2009

Ambiguity in Legislative language in HR 3200 may be there for a reason

Everyone with any interest in the proposed health care legislation should go here to read DrRich's latest blog entry in which he tell us what the ambiguity in the house bill is really all about.

I have blogged briefly before on the ambiguity and cognitively impenetrable nature of HR 3200 and suggested that is was not due to ineptitude of the authors of the bill and their inability to clearly put in words what they were proposing. As DrRich points out it is ambiguous for a reason.

The reason is that the lack of meaning will be supplied by the rule making processes of the various government agencies and this will be an unending process as opposed to a one time rule setting.

Ambiguity is a topic that has been discussed from time to time in the law journals. See here for a recent article from the Stanford Law Review.

Legal scholars talk about the willful insertion of ambiguous language into statutes as opposed to the inadvertent insertion of ambiguity. The first category sometimes is used to effect a compromise between opposing factions of a legislative body.In other cases the lack of clarity leads to interpretation (or more accurately definition) by an administrative or regulatory agency which could be the real reason for the ambiguity at least in some instances.

If a proposed statute is so ambiguous that its meaning cannot be determined by careful reading of the statutory language then public support or public denunciation of the proposal will likely turn on the rhetorical expertise and the persuasive power of the opponents to fabricate catch phrases and sell them to the public.

In regard to house bill 3200 DrRich's point is that no one knows what the specific effects of passage will be because as written the bill is without operational meaning and that will be supplied by government technocrats after the bill is passed and signed into law.

Here is how Dr.Rich summarizes it:

"This is legislation designed to create a legal framework under which huge cadres of unelected, politically-appointed policy mavens and bureaucrats will determine - by publishing hundreds of thousands of pages of regulations, rules, and guidelines - what our new healthcare system will look like. And until those regulations and guidelines are actually created - and this “creation” will be a never-ending process rather than an act - anybody claiming to know the precise nature of our new healthcare system under HR 3200 is engaging in one of the following: lying, projecting one’s own wishful thinking, or extrapolating on the perceived behaviors and beliefs of those who (one surmises) will finally get to make up all the rules."

I can't say it any better than that.

1 comment:

Bill Baar said...

And Cass Sunstein has the final say on those rules I believe. It's all in the regulations.