Who Knows What Lurks Within?

With just a few exceptions Obamacare has remained virtually untouched since its passage. Lawmakers were disinclined to risk political capital when almost everyone expected the Supreme Court to step in and deliver la estocada. Instead, this particular bull was granted un indulto, put out to pasture where it will spend the rest of its days breeding.

The target of the final thrust was to be the provision for a 3.8% surcharge on investment income. With that left intact, the remainder of 2012 is likely turn into a Chinese fire drill as the investment community scrambles to dodge the new tax. And other, less publicized subsidies buried deep within the nearly 6000 pages of the bill will now come to the forefront.

Some 20 new or higher taxes on individuals and small businesses are included in the massive legislation. Hundreds – if not thousands – of other provisions carry the potential for future litigation. Having survived the broad challenge, the bill is now fair game for armies of lawyers who will swoop in to pick its bones clean.

The pursuit of absolute clarity and universal fairness in modern legislation is ultimately self defeating. A few men and women author a bill and a few hundred more fiddle with it until it becomes sufficiently satisfactory to a majority and becomes law. The legislators always believe they have thought of everything, but there are tens of thousands of lawyers waiting in the wings to prove them wrong.

The belief that absolute fairness can be achieved through legislation is unrealistic. Fairness is an elastic concept and cannot be quantified. The true test of any law comes not through the highest court, but in challenges to the minutiae brought before juries where fairness is judged by everyday people. Massive and complex laws such as Obamacare need not be killed with a single thrust; they can die a slow death at the hands of countless picadores and  banderilleros.

Concision, not complexity, defines great laws. That it takes more than 250 times the number of words contained in the entire Constitution to write a single bill should call the current process into serious question.


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