by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The separation of powers and its role in protecting individual liberty and the rule of law can sound pretty abstract. I confess it seemed that way to me in my high-school civics class. I came to appreciate the genius of the Founders’ design more fully only years later, when as a judge I saw what happens to real people in real cases when the separation of powers goes unattended. Let me share with you a few of their stories, some of which you will see laid out more fully later. They’re just a sampling of so many that came across my desk.
Caring Hearts. Caring Hearts is a small business in Colorado that provides Medicare nursing services to the elderly. One year, the government performed an audit and concluded that Caring Hearts had improperly billed hundreds of thousands of dollars of services, so it slapped a fine of over $800,000 on the company. The trouble was, the government applied the wrong rules. Instead of applying the regulations in effect during the time Caring Hearts provided its services, it faulted the company for failing to abide more-onerous rules that the agency adopted only years later. How did the government get its own rules so wrong? Every year, the executive agency administering Medicare has used the legislative authority delegated to it by Congress to issue a river of legally binding regulations and thousands more “sub regulatory guidance documents” to explain those regulations. The agency had apparently written so many new legally binding rules that even it had lost track of all the changes.