Government by Waiver

One of the great achievements of Western civilization is what we commonly call "the rule of law." By this we mean the basic principles of fairness and due process that govern the application of power in both the public and the private spheres. The rule of law requires that all disputes — whether among private parties or among the state and private parties — be tried before neutral judges, under rules that are known and articulated in advance. Every party must have notice of the charge against him and an opportunity to be heard in response; each governing rule must be consistent with all the others, so that no person is forced to violate one legal requirement in order to satisfy a second. In the United States, our respect for such principles has made our economy the world's strongest, and our citizens the world's freest...

Lately in America, we have done a poor job of preserving this balance. In practice — and, increasingly, in legal theory — government officials have been given unprecedented ability to make exceptions to the law, both in enforcing it and in respecting the rights granted under it. Indeed, the past year has seen two of the most enormous pieces of legislation in U.S. history — the Patient Protection and Affordable Care Act and the Wall Street Reform and Consumer Protection Act — make the imbalance far worse. Both laws seek to dramatically transform vast swaths of the American economy; both give enormous power to the government to bring about these transformations. And yet both laws are stunningly silent on exactly how these overhauls are to take place. The vague language of these statutes delegates much blanket authority to government officials who will, effectively, make the rules up as they go along...

The issue of government by waiver arises in any system of public administration. But as the size of the state has expanded dramatically, the scope of the problem has grown right along with it............

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Whovian said:

A little long, but a very interesting read.

Government by Waiver > Publications > National Affairs

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