Lawmaking Conundrums: Understanding the Relationship Between the Policy and Underlying Principles that Produce Good and Bad Law

One of the most fundamental problems with lawmaking is the ability to see the difference between the underlying principles and how the practice of those principles is applied to law. The practice of principles is what becomes policy. Ignoring or misunderstanding how an idea translates into practice can be as bad as a misguided principle.

When the sides of an issue brew debate about their ideology in support or defense of a bill, it usually circles each side accusing the other sides of misguided principles. Debate degenerates into attacks that scurvy politicians, whose nefarious intentions are designed to rob and plunder society or destroy Constitutional ideals, have based a certain piece of legislation on some lack of correct principles or even a deliberate derailing of our constitutional foundations. Since usually all sides play one Constitutional card or another in their defense or attack of another viewpoint, it becomes a dizzyingly moot point of debate for most people. For those bills that are seriously flawed Constitutionally—and we could discuss many here—there is obvious evidence of a serious need for education by the American public (from whence legislators come) on Constitutional studies. We will lay that discussion aside, noting that an article illustrating that need was previously written by this author.

Sometimes the rhetoric about a principle is so thick, legislators—and the public—cannot see straight enough to realize there are other reasons a bill is bad: It may not be a matter of a bad ideal but a bad way of going about it. Upon scrutiny, this may consequently reveal an even larger principle that was overlooked. There are several reasons for bad policy slipping through the legislative process. And they have to do with skill sets.

One critical skill needed to differentiate good legislation from bad is the ability to see ahead what will happen upon taking the steps engrossed in a bill. I taught my children, when young, to play Chess . The game requires of its participants the ability to look at all possibilities of their actions and their opponent’s. It is the perfect trainer for anticipating multiple cause and effect actions. It also trains players to think well in advance to prevent losses. A perfect example of this lack of skill by legislators occurred last year when the City of Houston had a resolution on the November ballot relating to the city’s serious flood problems.

The idea of providing a mechanism for controlling flooding is good. But the way the bill was written lacked foresight. It gave a spending minimum but no maximum, with 20 years to spend—carte blanche. The bill did not specify which sections of the massive city would be affected. And while it provided a formula for calculating the new tax, the mayor, who had a great part in creating the bill, insinuated that no one would be exempt from the tax, including already tax-exempt entities. The bill passed on the claimed idea of providing needed infrastructure rather than being rejected for its enactment policies–or total lack of them. After the fact, public hearings are being conducted to establish what should be done, but the final decision is the Council and Mayor’s to make. Because the effect of policy was ignored, the perceived principle was trumped when a more fundamental one manifested itself–that elected officials could have absolute power, with no caveats, over the people. This was obviously not the intention of the public that voted in record numbers to oust elected officials on the spending abuse in that very same election. This demonstrates that the voters simply did not have the skills to see how the flooding policy impacted future moves.

Another reason bad policy is implemented is through bad math. It is not enough to understand the principles. It is not enough to think through the various ways a bill will play out. One needs to hone logic skills and see when something doesn’t add up. If you asked a legislator what two plus two is, they would most likely roll their insulted eyes, and wonder why you would ask such a question when the obvious answer is four. But many times we look at ”five” and don’t pay attention to the fact that their original equation was two plus two–not two plus three.

And while these specific examples are fresh today, there are plenty of similar examples from year to year. The problem is chronic and universal. (Hence the need for understanding.) And thankfully for the intent of this article, only, there is an ample supply of examples. Here is another one: The Texas legislature is currently considering House Bill 3451, produced with the idea that good nutrition is vital to the health of people; and that tax dollars should not promote poor nutrition. It could hardly be doubted that these are sound principles. But, using those principles, the bill forces those in the food stamp program to restrain from purchasing foods the government does not deem fit for consumption, prohibiting foods with “minimal nutritional value”. That sounds logical enough. And it sounds like a wholesome bill. But there is a problem with two plus two equaling four. It does not. The bill lists a plethora of unhealthy dietary ingredients and their supposed health conditions that result. Sodium increases high blood pressure; sugar leads to diabetes; fat and high cholesterol lead to heart disease, and so forth. The problem is those correlations aren’t necessarily accurate. Some people actually have a reverse problem to high blood pressure, needing high volumes of salt intake. While the arguments in the bill relate sugar to diabetes, it does not acknowledge that sugar—usually candy—is needed for diabetics on insulin to balance their insulin intake or they can go into insulin shock. The suppositions also do not account for differences in body metabolism and so forth. While they are generally true, they are not specifically so. It brings to the forefront how the government is able to legislate individual needs?

The bill also raises questions about whether those on food stamp subsidies should be penalized for such. Will potato chips hit the banned list? If a family barbecues hamburgers, should the traditional chips that go with the nutrition be banned? What about the hamburger its self? Based upon the opening arguments for the bill, those would be banned as well because the fat may cause clogged arteries and an eventual heart attack. To what end will the government go, if this bill passes, in determining what foods are good and which are not? Two plus two is not adding up to four here. This policy could actually cause as many problems as it solves; and be dangerous: For those with the less common opposite conditions than sited in the bill, the damage caused could potentially create more health problems and consequently more Medicaid or Medicare expenses on the back side to say nothing of law suits. This is very bad math.

The policies created in HB3451 expose a larger principle to challenge: In the face of a public demanding less government interference, it assumes that if the government is in a citizen’s business, it should be in it even more, and to whatever extent it deems justified, rather than the opposite stance of less interference. It brings up the question: Can the government decide to increase its interference because it is already interfering? —Bad math, bad Chess playing, and bad lawmaking.

But other governments–states, municipalities and counties–are certainly not immune to this kind of problem. A bill just passed in the Utah State Legislature is a masterpiece of bad legislation and should be the model for text books teaching public policy. A set of bills claiming to prevent and remedy illegal immigration problems, and complaining that the federal government is doing nothing, is so latent with the sort of problems mentioned above that it will more than likely do anything but eliminate illegal immigration. Inspired by Arizona’s tenacity, HB116, part of the Utah Compact, goes far and beyond the imagination, creating its own guest worker program, collecting federal withholding taxes of illegal aliens and allowing anyone and everyone so long as they can get to Utah before sometime in May of 2011 to reside there.

To hone in on specific illustrations, let’s pretend there is no controversy over the legitimacy of guest worker programs on the whole, and no argument about the Constitutionality of federal income tax so we stay focused on problems with policy specific to this incidence. A state with a guest worker program at all becomes problematic. In theory, a state could actually be culpable of harboring fugitives with its own guest worker program, if they provide an incentive for illegal aliens rather than following a federal program. Crossing not just the U.S. international border, but other states’ lines to get to Utah violates other state’s rights to manage illegal immigration by their laws. Utah does not have the right to force other states to oblige illegal aliens crossing their land to make their way to Utah.

Assuming the Federal Government would go along with this without accusing the state of encroaching upon its duties, the basic premise of the bill goes against the clause in HB70 that states there shall be no encouragement of illegal immigration. As we have seen already, what is not in a bill can be as problematic as what is in a bill. Because 116 has no set number of allowable work permits, it sets no limit to the number of illegal aliens that can come into the state to work, thus creating an open invitation for illegal aliens to come to Utah. Not even the Federal Government designs guest worker bills in that way. Federal bills have a cap on numbers of participants in the program with a set of qualifications stipulated.

Whenever a law is designed to provide funding through the very problem it claims to remove, it is designed to perpetuate the problem instead of eliminating it. In this case, penalties, fees, and fines by the illegal criminal pay for the program. Thus, it needs criminals to fund it and keep the program in existence. Historically, this circular type of funding mechanism never manages to accomplish anything but perpetuate the bureaucracy, increase the government’s burden, and the taxpayer bill down the road.

Additionally, the way the law is written, the program will not receive its operating funds until after an illegal alien is found guilty. One is only called a criminal after due process. Fiscal notes define how much a bill will cost to start the enactment of a law, not how much it will cost over time to maintain it. The fiscal note claims there is no fiscal impact. That is not so. It cannot be so. There must be people in place–training for police, lawyers, judges, clerks, administrative personnel, and so forth–before the first incident takes place. The system begs the question: where do the initial funds to operate this program come from if there is no note to provide them? Extremely bad math.

Another section calls for a “mechanism” for collecting state and federal taxes but does not specify what that is. Lacking specific details, and without specifying the “mechanism” in the bill, like the Houston Council and Mayor who have full power after the vote to do whatever they desire with flood taxes, a bureaucracy is going to have a hay-day designing whatever they want to increase their authority and power. Moreover, and more importantly, it is not in the scope of the state to collect or enforce federal withholding of any kind. This is going to be a jurisdictional and constitutional issue. Not visualizing the moves this policy will cause endless "Checks" quite possibly ending in a Check mate" against Utah if they do not amend their policy.

Regardless of who collects for these taxes, the policy creates a new level of bureaucracy on at least the state level and more than likely the federal level, who will then claim to oversee Utah's collection methods at best.

The bottom line is that there are some major constitutional, jurisdictional, and public policy problems with implementing UT HB116. There are so many policy problems that they overwhelm and even confuse what the principles behind them really are. It is critical for the public to understand the nuances of policy and lawmaking with respect to the principles in order to understand when their favorite issue is destroyed in the legislative process or the courts. More importantly, the public needs to understand how policies work in real life just in case a bad bill goes through because no one can add two plus two or play a good game of Chess.

(This article can also be read on The Moral Liberal.com; Examiner.com/political_buzz_in_houston, and soon to be posted to DIYgovernment.us/thinktank)