June 7, 2016

Bureaucrats confused by their own regulations

By Ethan W. Blevins Attorney
1280px-James_Madison
James Madison understood the dangers of overregulation

Ignorance of the law is no excuse; especially if you wrote the law. Federal regulations have become so complicated and abundant that even the agencies who write them don’t grasp them. Last week, the Tenth Circuit Court of Appeals chided a federal agency for ignorance regarding its own laws.

The case involves a spat between the Center for Medicare and Medicaid Services (CMS) and a medicare provider. The provider, Caring Hearts Personal Home Services, offers medical care and physical therapy to the homebound. Caring Hearts only gets medicare money for services that are “reasonable and necessary” for patients that meet CMS’s definition of “homebound.” When CMS denied coverage for some of Caring Hearts’ services, Caring Hearts sued.

It turns out that CMS just didn’t understand its own regulations. Judge Neil Gorsuch wrote, “This case has taken us to a strange world where the government itself–the very ‘expert’ agency responsible for promulgating the ‘law’ no less–seems unable to keep pace with its own frenetic lawmaking.” And who, really, can blame CMS? The agency churns out “literally thousands of new or revised guidance documents (not pages) every single year.” Their website has 37,000 separate guidance documents on it–likely an incomplete inventory. Surely we can’t expect an agency to read and understand all of that stuff. Right? To say nothing of the poor medicare providers who have to bump around in that labyrinth so they can get paid.

Bureaucratic bloat across all federal agencies has grown to absurd proportions. The Code of Federal Regulations contains 175,000 pages. The Federal Register had 2,411 pages of new regulations in it in 1936. Nowadays, it pumps out 70,000 pages a year. Each of those pages has birthed plenty more pages of guidance documents, policy manuals, directives, and the like. Do federal agencies expect the people they regulate to know that stuff, much less understand it, much less comply with it? If the agency itself can’t figure it out, the people they regulate are in trouble. In one way or another, that includes each of us. As Judge Gorsuch says, this growth of the modern administrative state “raises troubling questions about due process and fair notice–questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all this churning and changing law.”

James Madison predicted this problem back in the 1700’s. He said, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; . . . or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.” The sheer mass of federal regulations today threatens this basic notion of fairness. When federal regulators exercise such expansive lawmaking authority, we also lose the separation of powers so essential to prevent oppression. Not to mention the massive compliance costs imposed on the regulated.

Certainly, simplicity isn’t the only virtue we want from our laws. But it has become a forgotten one. As Richard Epstein has put it, “The proper response to more complex societies should be an ever greater reliance on simple legal rules, including older rules too often and too easily dismissed as curious relics of some bygone horse-and-buggy age.” Instead, we have a bureaucracy with an endless growth imperative, dampening the very human endeavors that we should foster.

Moses made a single tablet of ten directives. Hammurabi’s Code contained a whopping 282 concise rules. Maybe if we made our bureaucrats record their rules on clay tablets, too, we would inspire some restraint. Or a severe clay shortage. Better yet, we can look nearer in time to our founding document–one that envisioned an administrative state far more constrained than the paper behemoth we’ve created.

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