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July 16. 2013 5:22PM

Charles Arlinghaus: Officials have to follow even the stupid laws


 

THERE IS A right way and a wrong way for the government to do something stupid. It won't surprise anyone that the current administration in Washington has chosen the wrong — and almost certainly illegal — way while New Hampshire managed to do a whole host of silly things, but in the right way.

Routinely, governments find that laws previously passed get in the way of something they are trying to do (or not do) today. But they don't want to repeal the law for the future; they just don't want to follow it this year.

That happened recently with the byzantine federal health care law. Those following closely will recall that the law includes mandates that both individuals and businesses buy health insurance. Implementing the law has taken longer and been more complicated than some administrators had expected. Citing concerns about the complexity of the requirements under the law, the Obama administration unilaterally suspended for a year the portion of the law that applies to businesses.

The administration didn't ask Congress to pass a temporary repeal. It merely announced that it will cease to enforce a law of the land for a year. Businesses get this break; individuals are still out of luck. Apparently the law is too complex for businesses to follow, but perfectly fine for individuals.

Businesses with more than 50 employees, the ones to whom the law applies, are only a few percent of all firms, but they account for 72 percent of employment.

While I think delaying the very complex law is reasonable, I would have delayed it for both businesses and individuals just to be fair. But, a much more important point, administrators do not have the authority to pick and choose which laws they will enforce. If a law making the tax rate 35 percent passes, can the IRS announce it will enforce only the first 30 percent? If Congress chooses to require airbags on new cars, would it be OK for the transportation secretary to announce that the department won't actually enforce that?

Administrations can request that laws be repealed or suspended, but they may not choose not to enforce laws they disagree with. If a Republican had replaced the current President, would it have been acceptable for him to just announce that he won't be enforcing Obamacare? Of course not.

In New Hampshire, we pass temporary restraints on laws all the time. But the governor doesn't decide what to enforce. Instead, the Legislature passes a law temporarily suspending another one.

For example, technically we have a law that requires surpluses left at the end of the two-year budget cycle to be deposited into a "rainy day fund." In theory this allows the extra money in good years to become a reserve to balance out small revenue shortfalls in bad years. But each of the last five budgets has suspended that law.

After state reserves had been drained from $188 million to $17 million by 2003, then-Gov. Craig Benson set of a goal of building the state's operating reserving back to a more prudent $100 million. Benson's $82.2 million surplus would have brought the state's reserves to $99.5 million had the law been allowed to work. Instead, the next governor and Legislature passed a law suspending the rainy day fund law so the surplus would be available for them to spend.

The surplus turned out to be larger than they thought, so they put some of it and some of the $51 million surplus two years later aside. But they kept and spent a total of $61 million that should have been set aside for the rainy day that was on their doorstep.

The Republican Legislature that decried this sort of practice in 2011 nonetheless passed a law preventing $17 million from going in the rainy day fund. The current divided government hangs on to that $17 million and an additional $39 million surplus the last budget generated. At this point, it isn't clear why we have a rainy day fund at all.

As annoying as I find the bipartisan effort to neuter the state's rainy day fund, our governors and legislatures do it legally. This was never done by executive fiat. Instead, the law was duly suspended by passing another law, as opposed to what the administration in Washington does, which is to refuse to enforce the laws it is elected to administer.

Charles M. Arlinghaus is president of the Josiah Bartlett Center for Public Policy, a free-market think tank in Concord. His email address is arlinghaus@jbartlett.org.


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