The National Council on Identity Policy (NCIDP) Basic Law

The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many.

THE RULE OF LAW - The prevailing standards of a legal system; those standards of law against which actions and conduct are correctly judged.

In the United States, "The Rule of Law" can be divided into two main forms of law: Codified (Statutory) and Uncodified (Common Law, Case Law, and Public Law). Both forms of law are judged against our Constitution and must be consistent with that Constitution to have any force or effect.

It is very important to note that virtually all U.S. business law originates in Common Law, even where business laws have been Codified into statutes. That is, most statutory business law is almost entirely based upon preexisting Common Law, and most business law remains strictly a matter of Uncodified Common Law.

Likewise, most individual rights, freedoms, and liberties are found in Common Law, with only a few select and important ones specifically enumerated in the Constitution.

Designed into "The Rule of Law" of the United States are the principles of freedom publicly espoused by the nation, existing in Common Law from ancient time, expanded in Common Law by the Declaration of Independence, and protected by the Constitution. Therein, all powers not granted to public entities by law are reserved to individuals. That is, the rights and freedoms of the individuals can be described as infinite, expansive, all encompassing, limitless; while the privileges of the government can be described as pinprick intrusions into those infinite freedoms, tightly bounded and constrained by law that, in turn, is tightly limited by the Constitution to minimalist infringements upon that infinite individual freedom.

The boundaries, the size, of each pinprick intrusion can, at maximum, be defined solely by democratically elected legislators, within which all regulations (see below) must be strictly formulated.

Application of Case Law (see below) follows that logic, where findings of individual right and Constitutional protections are broad and sweeping and applicable to many dissimilar cases, while findings that intrude upon those individual liberties must be narrowly construed and applied only to situations of great similarity to the deciding case.

Any regulation exceeding those lawful, democratically and Case Law created boundaries are illegitimate, unConsitutional 'legislation' created by the Executive branch, known as "legislation without representation". When any regulation exceeding the bounds of law in such manner, to any slight extent, prevails or is permitted existence, democracy is dead and freedom is lost to mythos.

UNCODIFIED LAW: When a bill passes the legislature, and is signed by the executive branch (President, Federally, or Governor at State level), it becomes Public Law, the new 'law of the land'. Different parts of that new Public Law are then extracted and placed into different parts of existing Codes (Statutes - Codified Law, see below). However, some parts of the Public Law may not find their way into the Codes (Statutes) and continue to be found exclusively in "Uncodified Law". Public Laws, however, are more in keeping with the earlier traditions of English Common Law than Codified Law, which arose from Roman traditions.

Later, in courtroom proceedings, judges provide expanded and refined interpretations of The Rule of Law, and those interpretations become Case Law. Common Law is, simply put and in the modern sense of it, all notions of law and rights that were established before the modern system of Codification (Statutes) was established within the United States, pursuant to the Constitution. Common Law is basically grounded in old fashioned common sense as decided by judges back through the centuries of English Common Law, later encompassing and influenced by convergence with the legal system of the Roman Empire, as well as the law of the sea. Modern Common Law (U.S.) only began diverging from English Common Law with the Declaration of Independence, and the U.S. Supreme Court continued intermittent and diminishing reliance upon decisions of Common Law of the courts in England for decades after the founding of the U.S. Supreme Court.

In short, "Uncodified Law", that from which Codified (Statutory) Law is derived, and that by which Codified (Statutory) Law is interpreted, can be regarded as an overarching umbrella of the law - the highest 'law of the land'. It is both the roots of the law, both in Common Law and in Public Law, as well as the interpretive filter of The Rule of Law, as in Case Law, which also again includes Common Law.

CODIFIED LAW: (meanwhile,) can be regarded as a summary compendium of the Public Laws created by legislators; a very convenient reference tool of the most basic elements of the law, but also very minimalist and incomplete. In relation to the 'umbrella' analogy for Uncodified Law, above, "Codified Law" can be likened to the thin spines spanning outward from the center shaft of the umbrella, stretching taught and structuring that umbrella fabric that is Uncodified Law.

The principles for "Codified Law" originate at least as far back as the Roman Empire, and took root strongly in Continental Europe. Later, the influence of the principles and body of "Codified Law" gained foothold in England, was practiced as a separate body of law from English Common Law for some time, before gradually being enfolded into Common Law - a convergence so gradual that some small separations persisted a century or more beyond the founding of this nation.

(Important Note 1 (see also Important Note 2, below): portions of some "Codified Law" are, in some states, referred to by names such as, 'Code of Regulations', or other usage of the word, 'Regulation'. This Codified Law is NOT the same as "Regulations", as defined below. It's confusing, we know. Knowing the difference is critical, however.)

REGULATIONS [Administrative]: a term used to describe rules established by administrators (of the executive branch) for the purpose of correctly implementing and enforcing The Rule of Law.

It is VERY important to avoid conflating "Regulations" with Laws or The Rule of Law. "Regulations [administrative]" are NOT laws!

"Regulations" carry no 'weight of law'; they are not laws nor do they carry the force of any laws (that would be "legislation without representation", patently unConstitutional in the United States), but they do guide the principles of enforcing The Rule of Law - at least when crafted appropriately. (Whereas, Uncodified Laws, including Common Law, DO carry the weight of law!)

(Important Note 2 (see also Important Note 1, above): some "Regulations" are, in some jurisdictions, referred to by names including the term "Code" or the like, such as 'Federal Code of Regulations'. Such "Regulations" are NOT "Codified Law", as defined above, and carry no weight of law themselves whatsoever, and must be wholly compliant with every part of the rule of law, including "Uncodified Law" (including "Common Law") to be valid. It's confusing, we know. Knowing the difference is critical, however.)

As the Supreme Court has said (Case Law!), 'any regulation written that is inconsistent with "The Rule of Law" has the effect of no regulation at all.' That is to say that such an illegal regulation does not serve the function of a regulation but, instead, serves the function of irrefutable documentation of the illegal racket engaged in by the authors and enforcers of that illegal regulation.

It is a complicated process to develop appropriate regulations given the great body of Codified and Uncodified laws stretching back through many centuries of English Common Law, that such regulations must be written to comply with (in addition to whatever Public Law directed creation of that regulation). In such cases, the administrative agency tasked with "adopting standards" not enumerated by the legislature by the specific Public Law making such mandate must take upon itself the function of enormous legal research to ensure that the regulations adopted, and the standards set, in no way attempt to arrogate any other rules of law including the most ancient of English Common Law, do not infringe upon ANY personal liberties reserved to individuals, and are constrained to creating burdens solely upon the government and not upon private individuals.

A PRIME EXAMPLE OF SUCH DIFFULT REGULATION-MAKING BURDEN

(A little more technical now.)

A prime example of such difficult burden: "The Secretary shall adopt standards providing for a standard unique health identifier for each individual, employer, health plan, and health care provider for use in the health care system." (P.L. 104-191 § 1173; Health Insurance Portability and Accountability Act, a.k.a. HIPAA). This gives the Secretary the power to write a regulation to establish a "standard unique health identifier for each individual ... for use in the health care system." So, all that the Secretary knows from this is that the unique identifier must be for use within, the "health care system", since it reads "unique health identifier ... for use in".

Yes, laws really are that precise, as they are required to be by our Constitution. The primary function of democratically creating laws and clearly documenting them, intended by our founders, is to maximize the constraints upon the government to prevent it from acting in as tyrannical a manner as the King of England had upon the Colonies that rose up and fought that tyranny to establish that Constitution.

Some (who apparently didn't read the law carefully) had suggested, shortly after passage of HIPAA, co-opting the Social Security Numbers assigned to individuals to serve as the "standard unique health identifier [for individuals]". This clearly is not a "unique" health care identifier as it is, in fact, a shared number (Social Security Administration, et al.) not at all unique to health care. Thus, a regulation directing such use would clearly be an illegal regulation (under HIPAA), were an attempt made to adopt such regulation.

Moreover, since no statutory enumeration requiring use of Social Security Numbers for such purpose was made, the preexisting Privacy Act prohibited co-opting of that number for HIPAA's purposes. Even had it been legal strictly within the context of HIPAA, it would have been extraordinarily problematic to implement. This is because HIPAA in no way whatsoever abrogated the right of individuals to withhold their private Social Security Number, as guaranteed by the Privacy Act of 1974 (P.L. 93-579); and, in fact, HIPAA is specifically NOT applicable in any way to individuals, but only to organizations and agencies and the like (P.L. 104-191 § 1173), thereby in no way authorizing the placement upon individuals any burden, duty or infringement of autonomy or rights guaranteed elsewhere in law.

More specifically, the Privacy Act prohibits the withholding of any service or benefit to any individual who elects to exercise the right to withhold disclosure of any Social Security Number (P.L. 93-579 § 7). Consequently, had usage of Social Security Numbers been within the bounds of HIPAA, the Secretary would still have had to offer alternatives to every individual that elected to prohibit that usage pursuant to their Privacy Act guaranteed right to do so.

And then, to compound the difficulty further, the Social Security Act (codified at 42 U.S.C. § 405) strictly and entirely prohibits disclosure or dissemination of any information whatsoever collected with, or held in a file wherein, a Social Security Number was solicited or retained pursuant to any act of Congress enacted after 1990. HIPAA was enacted in 1996, so if any regulation or policy arising from HIPAA called for solicitation of a Social Security Number upon health care providers, the entirety of the medical record, included diagnostic codes, would become sealed against any disclosure short of a court ordered search warrant. Providers then would not even be able to disclose those diagnostic codes and bill insurers, for example, and the intended purpose of the HIPAA billing simplification clauses would be crushed to oblivion. Such conflict with the intent of HIPAA, directing creation of the regulation, then precludes the regulation from in fact adopting usage of the an SSN as the "unique health care identifier".

Other informative findings of the Supreme Court relevant to this example: 'the privileges of public entities are always subservient to the rights of individuals'; the non-consensual release of a social security number constitutes "a clearly unwarranted invasion of personal privacy." (IBEW Local No. 5 v. Department of Housing and Urban Development (3d Cir. 1988) ratified (S. Ct. 1989)); that "constitutional deprivations may not be justified by some remote administrative benefit to the State." (Harman v. Forsenius (1965)); and that "both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person." (Department of Justice v. Reporters Committee for Freedom of the Press (1989))

In short, in this example and getting back to the proper making of a regulation, given these and other constraints of law (especially privacy rights), the most plausibly compliant regulation that can be derived from this mandate upon the Secretary is to establish "a standard unique health identifier" for each individual at each individual encounter such that there is no personally identifiable connection to previous encounters. Such an identifier method would then meet all of the personal privacy protecting requirements found elsewhere in law; comply with the mandates of HIPAA upon the Secretary and the "health care industry"; and would not impose any burden or infringement upon individuals accessing health care; nor would it happen to place any additional burden (not already existing in law) upon providers of health care (to whom HIPAA does apply) - an 'everybody wins' option.