The law of the land

You remember that old elementary school civics textbook illustration of how a bill becomes law — the rolled up bill with legs and eyes strolls from draft to committee to House and Senate votes, dodging presidential veto and finally gets signed by the president?

Well, forget it.

“Laws” passed by Congress and signed by the president are not really hard-and-fast rules for behavior, bright lines over which one should not step. No, they are merely suggestions. The rules are written by the bureaucrats in the bowels of assorted government departments and agencies, and even those can be awfully flexible, depending on the whims and vicissitudes of politicians and functionaries.

Take, for example, the Patient Protection and Affordable Care Act — ObamaCare in the pejorative. One might presume that in more than 2,000 pages the drafters could’ve covered just about every conceivable circumstance, but no. The bill states 67 times that the “secretary shall establish” this or that procedure or guideline, leaving the gritty details and heavy lifting up to Secretary of Health and Human Services Kathleen Sebelius and her minions.

When ObamaCare passed the House, it contained a Section 1233, which spelled out that Medicare would pay once every five years for a doctor to explain to a covered patient “the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title.”

When this was slapped with the “death panel” label, the section was excised from the final version signed into law by President Obama.

But the Obama administration has, oh so quietly, resurrected it as an annual program.

The final version of the bill did allow yearly physical examinations, but, according to a story first reported by The New York Times this past week, Health and Human Services has drafted rules to cover “voluntary advance care planning,” which includes discussion of end-of-life treatment.

The Times even hinted that such bureaucratic end-runs might become the norm.

“While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process,” the newspaper says, “a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress.”

The Times, bemusingly, quoted an e-mail from a congressional supporter of the stealth rebirth.

An early November e-mail from the office of Rep. Earl Blumenauer, D-Ore., warned, “This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth. …

“We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded.”

This is not even the first circumvention of ObamaCare. When a mandate kicked in requiring companies to provide a minimum amount of health insurance coverage, instead of enforcing the written law, HHS instead issued more than 200 waivers to companies, insurers and unions, affecting 1.5 million people.

In addition, HHS has prepared a 136-page rule on how to determine if insurance rate hikes are “unreasonable” under ObamaCare. Though the rule says rate hikes should not exceed 10 percent this year, the agency retains the discretion to determine what is unreasonable, leaving insurers at the mercy of the flexible rationale of bureaucrats.

When Congress punted on an effort to pass a law that would impose “neutrality” on the Internet, the unelected appointees at the Federal Communications Commission stepped in, even though a federal court said it had no such power. New rules will allow some companies to charge extra for faster delivery of Internet content such as streaming video, but the FCC will require disclosure of such deals and reserve the power to reject them. The criteria are fuzzy, to say the least.

Because the Congress could not find enough votes to pass a carbon dioxide cap-and-trade law, the Environment Protection Agency took it upon itself to set standards for emissions of greenhouse gases, targeting power plants and refineries. That’s still vague, too.

Though Congress passed a bill providing sanctions and trade embargoes on countries dealing with or sponsoring terrorists, according to another New York Times story, a division of the Treasury has been busily doling our licenses to companies to circumvent the embargoes for “humanitarian” reasons. These include companies that sell cigarettes, chewing gum, weight-loss remedies, sports equipment and Louisiana hot sauce.

How does selling weapons-grade Louisiana hot sauce qualify as “humanitarian”?

And that, children, is how things really become “law” — or at least guidelines so vague no one really can tell when they are in violation until some bureaucrat tells them so.

Thomas Mitchell is senior opinion editor of the Review-Journal. He may be contacted at 383-0261 or via e-mail at tmitchell@ Read his blog at

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