Mixed Signals: Breaking the “Law”

Rich Tucker

9/30/2012 12:01:00 AM - Rich Tucker

Quick, hang up that cell phone: You may be breaking the law. Well, not the law, exactly, but a regulatory agency’s view of what lawmakers might have meant. And that agency has power to issue its decisions as if they were laws. But wait, the agency has decided cell phones are okay after all, so never mind.

Confused? Aren’t we all.

The trouble begins, as so much trouble does these days, in Washington, D.C. After the financial meltdown of 2008, members of Congress decided they needed to “do something.” They weren’t certain exactly what they should do, but uncertainty didn’t stop them from acting.

The bill they passed in June 2010 is known as Dodd-Frank. It would be unfair to call it a “law,” because it’s not one in the traditional sense. A law explains what a person may not do (steal, for example) or must do (register for the draft). Viewers of the 1970’s Saturday morning stalwart “Schoolhouse Rock” may recall that a law is passed by a legislature and signed by an executive.

It’s reasonable to assume that a citizen reading a law should be able to understand it. He being compelled to comply with it, and it would be unreasonable to expect him to comply with something he can’t understand.

But even if you sat down and read all 848 pages of the Dodd-Frank law that president Obama signed, doing so wouldn’t help you much. Most of its provisions are vague. They express aspirations rather than concrete dos-and-don’ts. As the law firm Davis Polk & Wardwell explained in 2010: “The legislation is complicated and contains substantial ambiguities, many of which will not be resolved until regulations are adopted, and even then, many questions are likely to persist that will require consultation with the staffs of the various agencies involved.”

This law firm is closely tracking the law’s implementation, as many other firms certainly are. There will be plenty of money to be made by lawyers who can exploit loopholes in the law. Davis Polk reports that as of this month, regulators have missed more than 60 percent of their deadlines to issue finalized rules. “In addition, 131 (32.9 percent) of the 398 total required rulemakings have been finalized, while 132 (33.2 percent) rulemaking requirements have not yet been proposed,” the firm reports.

So, to paraphrase Nancy Pelosi, even though Congress has passed Dodd-Frank, we still don’t know what’s in it.

Here’s one thing we do know: a crucial agency created by the law is the Consumer Financial Protection Bureau. Congress gave it the power to write hundreds of rules and regulations, dealing with everything from Wall Street to debit-card fees.

That brings us back to cell phones. Most Americans agree to two-year service contracts, but have the option to break their contracts by paying a fee. Well, under Dodd-Frank an option is a swap. The CFTC has announced it doesn’t plan to regulate consumer contracts, but the agency has never explained why a cell-phone contract isn’t an illegal, unregistered swap. It could, of course, change its ruling next month or next year; this is a regulation, not a written law.

Dodd-Frank isn’t the only example of this sort of lawmaking process, of course. Obamacare does much the same thing. Under both “laws,” regulators were told to take action on a particular topic at some point in the future, leaving millions of Americans waiting for their decision. For example, there are hundreds of places where Obamacare says the HHS Secretary “shall,” “may,” or “determines” something or other. The Secretary’s word will be law. But nobody voted for that secretary.

The Framers understood human nature and feared strong, central government. That’s why the Constitution carefully enumerates what each branch of government is supposed to do, and it’s why the enumerated powers so often overlap.

Our forefathers expected that members of the executive, judicial and legislative branches would attempt to expand their powers, but that members of the other branches would be constantly pushing back. The resulting give-and-take would tend to limit the power in any particular branch. But the Framers couldn’t have imagined that members of the legislative branch would, instead, eagerly hand off their authority to unelected bureaucrats in another federal branch.

It’s time for lawmakers to assert their authority and stop passing the buck. Call your congressman, before some agency decides to take your phone away.