We are now so jaded about the Affordable Care Act that it has lost the ability to shock us. News of its 38th delay in implementation is stirring up outrage from all the predictable quarters, but outrage isn’t shock. Everyone, supporters included, understands now that implementation means improvisation.
For many Americans, however, there’s nothing outrageous about broader health care coverage. No matter how clumsy and inefficient implementing the ACA may become, and no matter how bad the risk pool may become as a consequence, enough of us are captivated by the abstract principle of expanding coverage to ensure that repealing Obamacare remains an uphill battle at best.
That’s why so much of the debate over the legislation centers on whose lives the costs and benefits of delay will affect most. Only a relative few are concerned primarily with whether or not the administration’s improvised implementation violates the constitution.
Some delays appear to be more legal than others. On the whole, however, defenders of implementation make a strong case that its constitutionality is very unlikely to be successfully challenged. As former Carter administration policy hand Simon Lazarus observes, a broad range of scholars agree that the constitution’s phrasing grants the president wide latitudes in exercising judgment around the timing of law enforcement.
Indeed, writes Lazarus, justice departments under both parties historically agree that the president is authorized “to decline enforcement of a statute altogether, if in good faith he determines it to be in violation of the constitution.” Our founding document seeks to prevent the chief executive from refusing to enforce a law because he or she doesn’t like it. Obama isn’t opposed to Obamacare; his delays are in the service of full implementation; therefore, constitutionality is assured.
The Supreme Court embraced this logic of argument back in 1985. Yet, that’s not enough of a reason to wave away concerns that the ACA’s implementation marks, in some significant way, a disturbing break with American legal and political tradition.
Too few are willing to consider the sobering possibility that Obamacare is posing a threat to the rule of law so big that it’s outside the four corners of the constitution.
It’s no coincidence that contempt for the political process has grown step for step with the administrative apparatus entrusted to implement ever more of America’s multifarious rules.
Few commentators, right or left, dare countenance the proposition that the constitution could be more ambivalent about the rule of law than its most ardent defenders claim. In the Progressive Era, however, the regulatory state was crafted well within the context of constitutional government. Since the early 20th century, the executive branch has sought, and the legislative branch has granted, broad administrative powers that the judicial branch has approved.
The rise of the regulatory state ran the gamut of America’s constitutional safeguards—preparing the way for the Obama administration’s pragmatic approach to ACA implementation. Though occasionally overstepping the line, the administration has largely just taken the constitutional framework of administrative regulation to its logical conclusion.
The unfortunate truth is that this is enough to accelerate America’s course toward despotism—and not simply despotism, but a kind of despotism that enjoys the imprimatur of constitutionality.
Consider the psychological mismatch between many Americans’ cynical resignation surrounding the ACA and their ardent love for the idea of justice it embodies. Today, we still believe that wisdom in politics above all counsels realism as to means and idealism as to ends. Our political experience, however, is one in which abstract principles increasingly seem to be the only aspect of political life untainted by corruption, venality, and power—and in which the process of politics itself falls irredeemably short of the hope aroused by our ideals.
As a result, our sense of political wisdom is itself corrupted. Unimpeachable moral goals are set, and our system of government, for which public trust has fallen to humiliating lows, is set to the task of coming as close as it can to delivering the goods of our fantasies.
This is a recipe for madness. Because we cannot start hating our most cherished moral principles, which seem to be our last scrap of purity in politics, we grow ever more disenchanted with the practice of governance—casting blame ever more venomously toward our enemies, who occur to us more as monsters and aliens than as fellow humans, much less fellow citizens.
I would like to suggest it is no coincidence that public contempt for the political process has grown step for step with the administrative apparatus entrusted to implement ever more of America’s multifarious rules. When a piece of legislation or a set of regulations becomes the repository of an all-or-nothing moral ideal, the niceties of the rule of law become a threatening obstacle in our quest to achieve the totality of progress we have promised ourselves. The byzantine complexity of our administrative apparatus becomes an excuse for doing whatever it takes to arrive at the goal—no longer “full implementation” in a legal sense, but rather in the moral sense of experiencing the ideal as actualized in everyday life.
As our regulatory state has grown to replace our old government of enumerated and separated powers, it has inspired us to resent politics ever more deeply. In an eerie echo of the progressives’ call for an executive who could bring clarity and purpose to the inefficient and unwieldy realm of legislation, Americans begin to long for the kind of constitutional despotism that would allow presidents to implement our legislated dreams of justice to the best of their ability, whatever degree of arbitrary fiat that entails.
Believe it or not, however, we humans fight over how to realize our dreams. The Founders understood natural law—the kind expressed in the Declaration of Independence—to be our best chance at ameliorating the fury that so often arises in the midst of that endless struggle. But the Declaration is not codified in the Constitution, and the history of modern American politics is the history of the perceived obsolescence of the rule of natural law.
Yesterday, the rule of law was discarded in the name of national security. Today, it is being cast aside in the name of universal health care. Tomorrow, unless the ACA is ultimately scrapped and replaced, the rule of law is certain to suffer an even worse fate. Without rededicating ourselves to the Declaration, our future wars over the use of arbitrary executive power will soon drain away what’s left of America’s good conscience, goodwill, and good government.