01 April 2010

"But I know what I meant" is no excuse for poorly written laws

EconLog | David Henderson | Congress Messes Up

One of the reasons to have hearings on legislation is so people who comb through it can point out hidden traps, ambiguous language, unintended consequences, etc. But large parts of the Senate bill on health care that went into law were written behind closed doors. And it shows.

Throughout the discussion about the bill, various proponents said that the law would immediately prevent insurance companies from denying coverage to children based on pre-existing conditions. And it does. What, apparently, it doesn't do is require insurance companies to cover children. At least that's what some insurance companies are reputed to be saying. Having heard this, Obama appointee Kathleen Sebelius wrote a threatening letter to the health insurance companies' trade association.

Interestingly, various Democratic Congressmen expressed outrage at the insurance companies for reading the law carefully and trying to figure out what they are and are not required to do. There's no report that the Congressmen are angry at themselves for their carelessness.


Karen Ignagni, the head of the health insurance trade association, has caved and said that the companies will go along with what Sebelius wants. But so what? She doesn't make decisions for the individual companies. A company that wants to stick to the law as written instead of the law the Congressmen say they meant to write might well have a strong legal case.
Once again, what is the point of Rule of Law if you're supposed to react to what you think legislators might have meant rather than what they actually codified?

I've been interested for a long time about the intersection between hackers and libertarians, and how my computer science education impacts my view of government. This kind of thing is a sterling example.

Here's what I wrote a month back about the following Saturday Morning Breakfast Cereal comic:
Here's another good Saturday Morning Breakfast Cereal that has a lot of truth about computing: computers do what they are told to do. It sounds obvious, but it's something a lot of beginning programming students have tons of trouble with in my experience. Conversely, it's exactly what I love about programming and why I think it helps to make your own pattern of thought so rigorous. If you want something to happen, you need to make it happen. And if you describe how to do it incorrectly, or sloppily, you don't get what you wanted. Your intention is irrelevant, only the instructions you give matter. It's a lesson I wish regulators would learn. Maybe we'd have fewer of them shocked! shocked! to find out there are "unintended" consequences happening.
(BTW I mean computers do what "you" the programmers say and not what "you" the users say.)

If a program doesn't do what the programmer wants that's their fault.  You don't get to wine about what you really intended.  If you say the constraints are X and Y, and the program doesn't follow constraint Z it's your fault for not making that explicit.  Legislators need to learn that.  They're trying to control complicated systems, just like hackers.  You don't get the luxury of just waving your hands and willing your assumptions and intentions get taken into reality.  You need to make them explicit.

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See also panel two from XKCD #568, the Well of Uncomfortable Truths:

One of the greatest values of learning to program is that it forces you to clarify your ideas. There's no hiding behind the vagaries of natural languages. That's why I think everyone should learn how to do it, even if they have no future as programmers, just like everyone should learn to express their ideas in essays or orations.

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Between the fact that legislators are not particularly smart (see this morning's post about the distinguished gentleman from Georgia who thinks islands are like really big rafts made of dirt) and not particularly good about determining what the consequences of their legislation will be when it runs up against reality, I think we need a legislative war games panel.  Think of it as half Army War College and half Test Driven Development.  Take a bunch of people with experience in regulated industries and pay them scads of money to say how they would react to beat any new legislation.  Maybe give them bonuses for every "loophole" or "unintended consequence" they find.  It wouldn't be as good as the Hayekian knowledge discovery of a full market, but it might be better than nothing.

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