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Wednesday, December 18, 2013


What’s so terrible about that? The “rule of law” is overrated.

Mickey Kaus makes the case for graft and corruption if it implements ObamaCare.

HHS has pretty clearly escaped the rule of law and entered a world of corporatist haggling, where political leaders and a few big industry types sit around the table and work everything out. True, they have a mutual interest in doing so–Obama needs Obamacare to work, insurers are counting on it working well enough to make them money. The interests aren’t symmetrical though—at some point, long before Obamans give up on Obamacare, insurance companies could decide to cut their losses, bail, and go make money somewhere else. That gives HHS a motive to make sure they get enough money to keep them in the game: ‘Don’t worry, we’ll make it up to you later.’ This is a policy best announced at a small table in a noisy restaurant, not in the semi-judicial proceedings required for formal rulemaking under the Administrative Procedure Act.

What’s so terrible about that? The “rule of law” is overrated. For one thing, it takes too long–too long to cope with panicked attempt to avert a first year flop of your signature legislative accomplishment. Some of the more celebrated examples of presidential leadership–JFK jawboning the steel companies, for example–were cases of government threatening oligopolies, corporatist-style, not government imposing uniform rules on a competitive market. Washington’s agencies have to use their discretion, and the attempt by lawyers to cabin, channel and regularize that discretion–by requiring formal “rules” and judicial review of them–was always kludgy and artificial. You wouldn’t want to have sex under the Administrative Procedure Act.* Maybe launching Obamacare is more like sex and less like imposing rules against pollution.

This is how Republics die. This column is actually a wonderful example of why Fascism succeeds. Throughout time, many in the press are always ready to overlook the lawlessness of groups that advance its ideas. The Nazis, for example, got a lot of assistance from the German press who hated and feared the Communists. Mickey likes the “Affordable Care Act” (a name that is every bit as big an oxymoron as “People’s Republic”) so he’s comfortable with pretty much anything that helps it succeed. Keep in mind that success from the perspective of the Ruling Class is not often viewed as success by the Country Class. So back room dealing, crony capitalism, slipping a few billion here and a few billion there combined with threats of “nice business you got here, be a shame if anything were to happen to it,” is now considered so 1950s.

“What’s so terrible about that? The “rule of law” is overrated.” I, for one, welcome our HHS Overlords.

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