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Regulation and Compliance > State Regulation

On the Third Hand: Democracy

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The founding fathers of the United States had mixed feelings about “democracy,” and heeding the will of the people in general.

They opposed tyranny, and they themselves wanted to be free. But they came to associate the term “democracy” with obnoxious crowds chopping the head off of Marie Antoinette and putting her children in prison.

The United States ended up with a “republican democratic” system that was designed to give regular people enough say to keep them from rioting, but to filter their potentially dangerous desires through calmer heads.

See also: Six states sue over Medicaid plans’ PPACA fee bills

Over time, the United States moved more and more toward the idea that common Americans have innate good sense, and their role in governance should be expanded.

The course of both the Democratic and Republican presidential primary campaigns, and the nature of the Zubik v. Burwell birth control mandate Supreme Court case, shows how fragile the state of the current U.S. system of governance really is.

Members of the Democratic establishment are afraid primary voters will pick Bernie Sanders, and members of the Republican establishment are afraid primary voters will pick Donald Trump. The Democrats already have a system in place for giving their wise old heads control over their nomination process, and the Republicans reportedly are thinking hard about how to overturn their nomination process if Trump wins the primary popular vote.

Meanwhile, in the Zubik case, U.S. Health and Human Services (HHS) Secretary Sylvia Burwell is fighting off a complicated lawsuit over an employer birth control benefit mandate. The mandate itself, which is commonly described as the “Patient Protection and Affordable Care Act (PPACA) birth control mandate,” is the result of a breakdown in the U.S. legislative process.

PPACA does not mention birth control benefits. HHS created the mandate by moving, through a regulatory process, to approve a recommendation from the HHS Health Resources and Services Administration (HRSA) to put birth control products and services in a package of basic preventive services that any new PPACA-compliant plan must cover without imposing any direct cost-sharing charges on the patients.

In other words: PPACA supporters outsourced imposing a birth control benefits mandate on some un-elected panel that few voters ever heard of. Supporters got around opposition to the mandate by getting the mandate in through a mechanism beyond voters’ reach.

On the one hand, journalistic balance and objectivity aside: Of course I favor the idea of having a representative, non-tyrannous government.

On the other hand, I think that, whether you look at the primary worries from a pro-outsider or anti-firebrand perspective, the situation is scary. Either voters are voting for crazy people, and that’s frightening, or elites are trying to crush the will of the people, and that’s frightening.

Similarly, when it comes to the Zubik case, either Congress is so dysfunctional that it can’t even approve of a much-needed, high-return-on-investment benefits mandate, or it’s so dysfunctional that advocates of terrible mandates are using undemocratic backdoor processes to get what they want.

On the third hand, my bias is that this whole situation does not look good for me, personally. It does not seem as if either the populist firebrands or establishment elites who’ve grown accustomed to quenching populist firebrands will want to see gadflies buzzing around on the Web.

See also: 

Trump presidency a threat to world economy, says risk report

Sanders tax plans seen raising $15.3 trillion over 10 years


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