When the Law Does the Opposite of What it Intends to Do: One Hundred Twelve Theses on Government Failure (Incomplete)

When the Law Does the Opposite of What it Intends to Do:
One Hundred Twelve Theses on Government Failure

First Table of Contents

Part 1: Introduction (Including Eighteen Bad Basic Laws of Government)

I. First Introduction: Government Failure

II. Second Introduction: Five Reasons Why We Shouldn't Trust the Government

III. Three Clauses That Enable Legislative Action, But Are Used to Excuse Government Overreach

IV. Six Laws with Deceptive Names

V. Eight Self-Defeating Amendments (Plus the Draft)

Part 2: The Wars on Terror, Drugs, and Poverty (Including Seventy Bad Laws)

VI. The War on Terror: Fourteen Laws That Fail to Protect People from War, Terrorism, and Violent Crime

VII. The Wars on Drugs and Our Health: Twenty-One Laws That Failed to Achieve Affordable Health Care, Failed to Ensure the Legal Sale of Safe Drugs, or Failed to Protect the Environment

VIII. The War on Poverty, Part 1: Eleven Laws That Fail to Protect Workers' Rights and the Interests of Labor Unions
IX. The War on Poverty, Part 2: Seven Laws That Intended to Protect Minorities and/or Property, But Failed
X. The War on Poverty, Part 3: Six Budgetary and Monetary Policies That Have Led to Economic Ruin
XI. The War on Poverty, Part 4: Ten Laws That Intended to Make the Markets Free, But Rigged Them Instead


Part 3: Other Topics (Including Twenty-Five Bad Laws, and a Conclusion)

XII. Five Failed Laws and Policies Related to Insurance
XIII. Four Laws That Tried to Prevent Frivolous Lawsuits, But Go Too Far
XIV. Five Laws That Tried to Protect the Rights or Safety of Women and Homosexuals, But Failed
XV. Eight Laws and Programs That Fail to Protect Children
XVI. Three More Terrible Laws
XVII. Conclusion: New Laws Don't Work

Second Table of Contents

Part 1: Introduction (Including Eighteen Bad Basic Laws of Government)

I. First Introduction: Government Failure

II. Second Introduction: Five Reasons Why We Shouldn't Trust the Government

III. Three Clauses That Enable Legislative Action, But Are Used to Excuse Government Overreach

     1. The General Welfare Clause
     2. The Necessary and Proper Clause
     3. The interstate Commerce Clause

IV. Six Laws with Deceptive Names
     4. The Citizens United decision
     5. N.A.F.T.A. (The North American Free Trade Agreement)
     6. The 2008 Emergency Economic Stabilization Act (E.E.S.A)
     7. The Protect Life Act
     8. The Restoring Internet Freedom Act
     9. The Defense of Marriage Act (D.O.M.A.)

V. Eight Self-Defeating Amendments (Plus the Draft)
     10. Amendment I
     11. Amendment II
     12. The military draft
     13. Amendment III
     14. Amendment V
     15. Amendment VIII
     16. Amendment X
     17. Amendment XIII
     18. Amendment XIV



Part 2: The Wars on Terror, Drugs, and Poverty (Including Seventy Bad Laws)

VI. The War on Terror: Fourteen Laws That Fail to Protect People from War, Terrorism, and Violent Crime
     19. Incarceration in jails and prisons
     20. The death penalty
     21. Life sentences
     22. Gun-free zones
     23. Laws requiring publication of gun owners' home addresses
     24. Gun personalization requirements
     25. Gun buyback programs
     26. The War Powers Act of 1973
     27. The state's monopoly on violence
     28. The War on Terror
     29. The 2001 A.U.M.F.
     30. The U.S.A. P.A.T.R.I.O.T. Act
     31. Laws allowing warrantless searches and wiretaps
     32. The Whistleblowers Protection Act

VII. The Wars on Drugs and Our Health: Twenty Laws That Failed to Achieve Affordable Health Care, Failed to Ensure the Legal Sale of Safe Drugs, or Failed to Protect the Environment

     33. The taxation of health goods and services
     34. Federal negotiation of drug prices
     35. Subsidization of pharmaceutical companies
     36. The ban on denying emergency room treatment
     37. The Patient Protection and Affordable Care Act
     38. Ecstasy prohibition
     39. Heroin prohibition
     40. Marijuana prohibition
     41. Marijuana legalization
     42. Alcohol prohibition
     43. Corn subsidies
     44. The criminalization of purchasing alcohol for minors
     45. The criminalization of purchasing tobacco for minors
     46. Laws authorizing the Food and Drug Administration (F.D.A.) to approve or deny pharmaceutical drugs
     47. Laws authorizing the Environmental Protection Agency (E.P.A.)
     48. Federal vehicle emissions standards
     48. The Clean Air Act
     50. The Clean Water Act
     51. Bans on tree-line thinning
     52. The "Roadless Rule"
     53. Superfund sites

VIII. The War on Poverty, Part 1: Eleven Laws That Fail to Protect Workers' Rights and the Interests of Labor Unions
     54. The law that established Labor Day
     55. The Department of Labor and Commerce
     56. The McCarran-Ferguson Act
     57. The Wagner Act (National Labor Relations Act of 1935)
     58. The Taft-Hartley Act of 1947
     59. State Right-to-Work laws
     60. Overtime pay laws
     61. The Federal Reserve's "dual mandate" on interest rates and unemployment
     62. Laws that established the U1, U2, U3, U4, and U5 unemployment measurements
     63. The Employee Free Choice Act, and the Card Check bill
     64. Disability and Medicaid provisions which limit people's ability to be employed and receive benefits at the same time

IX. The War on Poverty, Part 2: Seven Laws That Intended to Protect Minorities and/or Property, But Failed
     65. The federal minimum wage law
     66. The Civil Rights Act of 1964
     67. Redistricting laws
     68. Laws against sagging pants
     69. The Clinton omnibus crime bill
     70. Laws establishing racial quotas for police
     71. The Homestead Act

X. The War on Poverty, Part 3: Six Budgetary and Monetary Policies That Have Led to Economic Ruin
     72. The Agricultural Adjustment Act
     73. Laws establishing natural resource extraction permits
     74. Property tax laws
     75. Sales tax laws
     76. Income tax laws
     77. Laws providing for Unconditional Basic Income programs

XI. The War on Poverty, Part 4: Ten Laws That Intended to Make the Markets Free, But Rigged Them Instead
     78. The Enumerated Power which authorizes Congress to coin and regulate money
     79. Laws limiting usury
     80. The Sherman Antitrust Act
     81. Laws enabling the U.S. Patent and Trademark Office

     82. Executive Order 6102 (which enabled gold confiscations)

     83. The Emergency Banking Act of 1933
     84. Laws authorizing the Federal Deposit Insurance Corporation (F.D.I.C.)
     85. Laws enabling the Securities and Exchange Commission (S.E.C.)
     86. The Glass-Steagall Act
     87. Laws authorizing the Consumer Financial Protection Bureau (C.F.P.B.)


Part 3: Other Topics (Including Twenty-Five Bad Laws, and a Conclusion)


XII. Five Failed Laws and Policies Related to Insurance
     88. Insurance regulations
     89. Home insurance regulations, and the Department of Housing and Urban Development (H.U.D.)
     90. Laws establishing public firefighting forces
     91. Insurance regulations regarding emergency medical care
     92. Insurance regulations regarding public school students' medications

XIII. Four Laws That Tried to Prevent Frivolous Lawsuits, But Go Too Far

     93. Legal immunity for gun manufacturers
     94. Legal immunity for the military and police

     95. Laws enabling the granting of L.L.C. designation

     96. Statutes of limitations on reporting rape, sexual assault, sexual abuse, and sexual harassment

XIV. Five Laws That Tried to Protect the Rights or Safety of Women and Homosexuals, But Failed
     97. Laws requiring fees and licenses to get married
     98. The Roe v. Wade U.S. Supreme Court decision
     99. Legal limitations and prohibitions on abortion
     100. The Violence Against Women Act (V.A.W.A.) of 1994
     101. Legislative proposals to require women to register for the draft

XV. Eight Laws and Programs That Fail to Protect Children
     102. Laws establishing minimum ages for consent to sex
     103. Laws establishing minimum ages for consent to marriage
     104. The federal law establishing a minimum age for consent to sex
     105. Laws requiring registration as a sex offender
     106. Laws establishing Child Protective Services -type agencies
     107. The federal law which established the National Center for Missing and Exploited Children
     108. Policies against establishing laws requiring minimum ages for tattooing and piercing
     109. Social Security Title IV-D (child support)

XVI. Three More Terrible Laws
     110. The Enumerated Power which authorizes Congress to "fix the standard of weights and measurements"
     111. Laws which regulate identity theft, in regards to banks' and credit agencies' customer information
     112. Laws which regulate identity theft, in regards to immigrants' Social Security

XVII. Conclusion: New Laws Don't Work 

Content

Part 1: Introduction (Including Seventeen Bad Basic Laws of Government)

I. First Introduction: Government Failure

     Can you name a law that has ever worked? A law that has worked the way it was intended?

     In our society, we're used to talking about market failures; high prices, high profits, price manipulation, monopolies, etc.. But I submit that we're not talking enough about government failures. Things like regulatory capture, and the erection of corporate privilege. Those things are every bit as important to talk about as market failures, because they cause most of those market failures in the first place (giving businesses power by handing them taxpayer money and/or writing special privileges for them into the law).

     In this essay, I will name ninety-five laws (or types of laws) in the United States – most of them federal laws – and explain how they achieve the exact opposite of their desired or intended effect. In explaining this, I will defend the idea that most attempts by the voting American public, to secure some equal liberty or new positive right – in many different policy arenas – have historically resulted in surrendering more decision-making power to the government regarding those policy issues, instead of resulting in more freedom or equality for the people.

     I will focus on two basic sets of policy areas:

     1) general constitutional powers which enable or limit government; and

     2) the failures of the “War on Terror”, the “War on Drugs”, and the “War on Poverty”.

In discussing the failures of those “wars”, I will explain how putting too much trust in the government to solve problems, has led to disastrous declines in the quality of policy regarding the military, policing, health care, legal and illegal drugs, and various economic issues pertaining to relations between workers and employers (and the government).

     And all of these issues are interrelated, I might add. Our police and military enforce not only the “War on Terror”, but they also defend (or decline to defend) ourselves and our property, enforce the “War on Drugs” and the “War on Poverty”, they enforce the financial and business and labor regulations.

     Whether it is constitutional that those agents enforce those laws – that is, whether the enforcement of these laws, is itself “legal” in the first place – should be considered an issue of extreme importance. So should the issues of whether the police, or other government officials, publicly-protected companies, should do what they're told; as well as the matter of whether the policy works in the first place; and, at that, works they way it was intended to work.

     [Note: The fact that I have included a specific law, or types of law, below, should not necessarily be construed to mean that I believe that such laws, or types of laws, could never work, nor that I believe they do never work. In many cases, I do doubt whether such laws could ever work; but in some of the cases listed below, I am merely criticizing the manner in which those laws have been historically implemented, and saying that the laws did not work as they were intended to work.]

II. Second Introduction: Five Reasons Why We Shouldn't Trust the Government

     There is a popular libertarian saying whose author is unknown. It was popularized by Barry Goldwater, often mistakenly attributed to Thomas Jefferson, and began circulating in 1950s American newspapers. It goes like this: “A government that is big enough to give you everything you want, is big enough to take it all away.” Whomever said it, it certainly seems true.

     We should not trust the government to solve our problems, for five main reasons; because of:

     1) the government's power to regulate ­ or not regulate – corporations (and to break up, or not break up, monopolies);

     2) the government's power to create monopolies and to create corporations;

     3) the corruptibility of the licensing and permit systems;

     4) the moral hazard involved in trusting the government and only government to solve our problems; and

     5) regulatory capture (the process whereby an industry comes to be “regulated” by the same people who work in that industry).

     If we trust the government to regulate corrupt companies, and tax owners who profit off of the public dime, then the government will do exactly that. I'm not doubting the government's ability, nor its will, to do those things. But shouldn't corrupt C.E.O.s, and people who embezzle taxpayer money, go to jail, instead of just having their taxes raised, and new “restraints” placed on them?

     But the issue isn't just that we're not jailing criminals if they happen to be wealthy; it's also that the government usually incentivizes wealthy criminals to commit their crimes. It does this through giving them special legal and financial protections, and devoting more money and police resources towards protecting the rich and their investments than the poor and their homes.

     Why should we trust the government to break up or regulate companies, or tax them adequately, or decline to abuse their privileges? For two simple reasons: 1) Government cannot be trusted to regulate nor break-up monopolies, because government (that is, state government) is a monopoly. 2) Why would government want to limit the power of corporations, when it's the government that's creating all of these corporations in the first place?

     Another endemic problem with our government is political; the manner in which large companies manage to secure taxpayer money and privileges for themselves, having asked for those things as a consolation for being taxed and regulated. Those companies and their lobbyists make it impossible to pass meaningful economic reforms that help the poor, because wealthy companies get away with insisting to legislators that all laws designed to help the poor, help them less than they help the rich.

     For all of these reasons, and the following, trusting government is a terrible idea, and here are ninety-two reasons why.

III. Three Clauses That Enable Legislative Action, But Are Used to Excuse Government Overreach

     The first three laws I will discuss, enable government but intend to severely limit it. They do the opposite of what they intend to do, because their language is abused by legislators, so as to excuse more government overreach and more distortion of the meaning of the law, instead of abiding by the limitation originally intended.

     These three laws are the General Welfare Clause, the Necessary and Proper Clause, and the Interstate Commerce Clause.

     1. The General Welfare Clause.

     The General Welfare Clause is a part of the Taxing and Spending Clause (found in Article I, Section 8, Clause 1 of the U.S. Constitution). It is the first clause of the “Enumerated Powers”; the eighteen specifically authorized powers of Congress.

     The General Welfare Clause empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”.

The General Welfare Clause does the opposite of what it intends to do, because the meanings of “general” and “welfare” in “General Welfare” Clause are being distorted.

     “General” means that duties, imposts, and excise taxes shall be uniform throughout the country. Basically, it means that the burden of taxation must be equal (at least in regards to those types of taxes). However, even if the burden of income taxation fell on states equally (which it doesn't), there is no proof that income taxation is good policy even when it can be done constitutionally.

     Additionally, “welfare” meant “well-being” when the Constitution was written, so it is arguable as to whether something like a “Department of Health, Education, and Welfare”, or modern welfare programs, are permissible under this clause of the Constitution.

     Thus, distortion of the terms “general” and “welfare” has permitted an uneven income tax burden across the states, in order to spend that money on - not the general welfare (which really just means the equal benefit of all people across the country), but – the vague or specific welfare. Any and every type of spending is allowed, to benefit any and every particular social safety net project or corporate welfare giveaway. And so, with no rationale as to why we're spending this money on these particular people and causes, we justify taxing people with no rationale as to whether we're taxing them equally.

     The General Welfare Clause enables government overreach, although its intent was to limit government. But I say “its intent”; the law doesn't have any intent. I mean to refer to the intent of the legislators who wrote it. And they, of course, worked for the government. We should expect no less, for as Thrasymachus explained, justice always serves “the advantage of the stronger”. This is to say that any government we can elect, will always rule in its own benefit; in favor of incumbents, and in favor of continuing the same style and structure of government.

     The General Welfare Clause would better be called the “Specific Welfare Clause”, the “Vague Welfare Clause”, or the “General Harm Clause”.

     2. The Necessary and Proper Clause
     The final clause in Article I, Section 8 of the Constitution, empowers the Congress “To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States...”.

     The Necessary and Proper Clause is often used to excuse doing whatever people think is necessary and proper for the government to do. But the term, as used in the Constitution, does not mean that at all. What is “necessary and proper” here, is not for the government to do whatever it wants, nor whatever the people wants; the intent here is to limit government's ability to do anything other than what is necessary and proper to execute “the foregoing Powers”.

     And what are “the foregoing Powers”? The Enumerated Powers. The preceding seventeen powers of Congress which are named before that sentence in the Constitution. The powers to create military and diplomatic policy, and monetary and treasury policy, and to punish piracy and regulate slavery, protect scientific discoveries, designate post roads, and little else.

     Congress was never intended to have the authority to do anything other than the seventeen things listed in Article I, Section 8, and the eighteenth congressional power enables Congress to do what is necessary to do those other seventeen things, and nothing else.

     The Necessary and Proper Clause would better be called the “Unnecessary and Improper Clause”, or the “Do What You Feel Clause”.

     3. The Interstate Commerce Clause
     The third clause in Article I, Section 8, empowers the Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

     Today, this clause is used to justify regulating not only business activity which substantially affects interstate commerce, but also anything that could remotely be described as economic activity, which could theoretically be construed as subtly affecting interstate commerce in any small way.

     The power to regulate interstate Commerce Clause is not even used; much less as intended. The clause intended to restrict economic regulation to what is necessary to prevent states from passing preferential laws that unduly favor the domestic commerce occurring within those states, over commerce from other states. Today, states are allowed to propose laws like this – for example, a law proposed in Minnesota that would have imposed a tax on craft beers from out-of-state - without anyone noticing that they violate the interstate Commerce Clause.

     The Commerce Clause thus enables Congress to regulate any and all economic activity, and enables states to consider laws that violate the Constitution and destroy the fairness of the American free trade zone, when the clause originally intended to strictly limit the power of the federal government to regulate interstate commerce, and to limit the power of the state governments to pass laws that protect local state business interests over the interests of other states.

     The interstate Commerce Clause would more appropriately be called the “Let the States Unfairly Protect Their Own Companies Clause” or the "Let the Federal Government Regulate Whatever it Wants Clause".

IV. Six Laws with Deceptive Names

     There are many laws in America – the P.A.T.R.I.O.T. Act and the Patient Protection Affordable Care Act, for example (which I'll get to later) – which have deceptive names. These deceptive names reveal precisely how the law does the opposite of what it states it is trying to do.

     4. Citizens United

     The Citizens United v. Federal Election Commission Supreme Court decision allows unlimited campaign donations; on the basis of the idea that donations to political campaigns are a form of free expression which is protected by the First Amendment to the Constitution. The ruling has divided the country.

     “Citizens United” would better be called “Citizens Divided”.

     5. N.A.F.T.A. (The North American Free Trade Agreement)

     The 1993/1994 North American Free Trade Agreement was a multilateral trade compact (or treaty) between several national governments. Its intention was to promote free trade, but it only worked towards a zero-tariff scenario and real free trade.

     Furthermore, N.A.F.T.A. went backwards on protecting property, the environment, and the sovereignty of foreign countries. It did this by allowing the Mexican Constitution to be amended so as to allow the exploitation of native land in Mexico by international property developers (among other negative consequences of the deal).

     Moreover, trade deals can be negotiated without governments, and they are probably even best negotiated without governments. Thus, N.A.F.T.A. achieved the opposite of free trade; it was a government-managed trade deal.

     Some criticize N.A.F.T.A. for creating a “North American free trade zone” that threatens to flood America with cheap products, cheap labor, or both. But that is to criticize the deal for making trade “too free”. I criticize it because it makes trade too unfree.

     The North American Free Trade Agreement would more appropriately be called “the North American Unfree Trade Agreement” or the “Make North America Submit Economically to the United States Agreement”.

     6. The Emergency Economic Stabilization Act

     The 2008 Emergency Economic Stabilization Act (E.E.S.A) was a congressional bailout measure intended to mitigate the damage of the 2007-08 financial crisis. While its stated intention was to “stabilize the economy”, what it actually did was authorize the Secretary of the Treasury to buy up to $700 billion in troubled assets.

     The E.E.S.A. was just the first in a series of bailouts, which affected nine major companies. Financial analysts have argued as to whether the total cost of the bailouts and restructuring ended up amounting to $10, $12, or even $29.6 trillion dollars, as opposed to the initial $700 billion troubled asset purchase authorization which made the Troubled Asset Relief Program “necessary” to create.

     Thus, the Emergency Economic Stabilization Act would better be called the “Emergency Economic Destabilization Act”, because it was a risky piece of legislation that put the economy in further peril.

     7. The Protect Life Act

The Protect Life Act, which was passed by Congress in 2011 but not signed into law, would have prohibited Obamacare funding from being spent on abortion. Its express purpose would have been to protect the life of the unborn fetus.

     However, that proposed law also would have made it legal for hospitals to deny abortions to pregnant women even if they have life-threatening conditions.

     Thus, the Protect Life Act would more appropriately be called the “Protect Fetus' Lives Only Act” or the “Let Women Die in Childbirth Act”.

     8. The Restoring Internet Freedom Act

     The Restoring Internet Freedom Act, enacted in 2018, destroys the freedom of the internet - its open-source, collaborative commons, peer-to-peer nature - because it prohibits the F.C.C. (Federal Communication Corporation) from classifying I.S.P.s (internet service providers) as common carriers. The law also prohibits the F.C.C. from “imposing certain regulations on providers of such service”.

     Thus, the Restoring Internet Freedom Act, would more appropriately be called “the Destroying Internet Freedom Act”.

     9. The Defense of Marriage Act (D.O.M.A.)

     The Defense of Marriage Act, which was federal law from 1996 to 2015, prohibited married same-sex couples from collecting federal benefits.

     Thus, the Defense of Marriage Act defended solely the marriages of heterosexuals, in treating same-sex couples in a discriminatory manner. So it doesn't defend marriages; if it did, then it would defend all marriages (between consenting adults), and it would want there to be more marriages. But the people who wrote and approved D.O.M.A. didn't want that.

     That's why the Defense of Marriage Act would better be termed the “Defend Straight Marriages Only Act”, the “Destruction of Marriage Act”, the “Preferential Treatment for Straight Couples Act”, or the “Offend Gay Marriages Act”.

[Explanations for examples of government failure #10-#110 will appear on this page at a later date.]

Written on July 27^th, 2019

Based on Notes Taken in June and July 2019

Written for the Bughouse Square Debates, held in Chicago, Illinois on July 27^th, 2019
and delivered in part at the debates

Edited on August 13th, 2019