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Delay, Delay, Delay

The lawless tweaking of Obamacare’s provisions continues.

Mar 17, 2014, Vol. 19, No. 26 • By JAY COST
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Second, it facilitated the rise of the national parties. Previously, party coalitions had been state-based or regional; however, competing for the presidency is a nationwide effort, which requires a nationwide organization. Nothing has done more to degrade the logic of Federalist 51. Under Madison’s theory, members of Congress should resist encroachments from the executive branch because they are institutional rivals. But, in the party system, the president has a partisan alliance with (roughly) half of the legislature. Moreover, the alliance is unequal, as the political survival of congressmen depends much more on the president than the president’s survival depends on them. This makes it difficult for Congress to assert its institutional prerogatives in the face of executive overreach.

Thus, presidents have a ready-made excuse for ignoring the law (“I speak for the people!”), and they can usually count on Congress to do nothing to stop them. Little wonder that presidents have been disposed to color outside the lines. Little wonder as well that Obama’s approach to the Affordable Care Act—princeps legibus solutus est—has been met only by impotent protests from his opponents. There is little to do but wait him out.

Conservatives can meanwhile take grim satisfaction that the Obamacare delays are clearly coming from a position of weakness, not of strength. Obamacare is a vast system of penalties and rewards designed to reshape the American health care system. The only way it can possibly sustain itself is if certain groups are made worse off, while others are made better off. Yet the administration has thus far systematically refused to allow the law to harm any politically powerful bloc. This may make for good short-term politics, but it is terrible for the law’s sustainability.

Broadly speaking, all of those who were supposed to be harmed by Obamacare were paying an indirect tax that Obama and his congressional allies did not want to impose directly. Granting group after group waiver after waiver inoculates them from the “taxes” they were set to pay, but those costs will have to be borne somehow, either in reduced benefits for the law’s winners or (more likely) greater withdrawals from the Treasury.

Of course, while the voters frequently complain about runaway federal spending, they are often averse to doing anything about it. But with Obamacare, there is a twist, for the federal government has more or less become responsible for maintaining the profit margins of the health insurance industry. This sort of deficit spending will not be politically sustainable. The country has been known to tolerate government support of business bottom lines, but never to this extent, and never for an industry that is so massively unpopular (in no small part because of the demagoguery of Obama and his minions).

This suggests one of two outcomes. Either the administration will start deploying Obamacare’s “sticks” and not just its “carrots,” forcing people to pay those implicit taxes, or the law’s opponents will gain a decisive advantage in the court of public opinion as Uncle Sam becomes the backstop for the shareholders of WellPoint, Aetna, et al. Sooner or later, the law will be either obeyed or rewritten.

Ultimately, Obama’s problem here is that he is in the minority on the issue of Obamacare, although like a good Jacksonian “sovereign,” he is convinced that his crude political interests are necessarily those of the people at large. But because Obamacare is so unpopular, his maneuverings will prove in the end a relatively minor abuse of the rule of law. As Madison writes in Federalist 10 about the dangers of minority factions:

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.

Sooner or later, this clogging of the administrative levers of government will come to a conclusion. Either the administration will execute this law in a way that makes it broadly popular, or it will be substantially reformed, if not repealed altogether. In the meantime, we just have to remember that Madison’s “republican principle” is realized at the ballot box. The ultimate way to address the abuses of the Obama administration is to make the case, patiently and carefully, with the American people, and allow them to rebuke him at the ballot box in November.

Jay Cost is a staff writer at The Weekly Standard.

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