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When his pet businesses did not like elements of the Affordable Care Act, Obama simply exempted them. When employers objected that their mandate would unduly hamper job creation, the president simply ignored the settled law and exempted them. Now, when millions have lost their coverage, the president is said to be ready to again reinterpret settled law and no longer demand that private insurance plans conform to the ACA statute, at least for a year.

Aside from the question of whether it is legal or right for the president to decide arbitrarily which elements of legislation to faithfully execute, it is also a sort of new way of ad hoc governing: The president grandly introduces a new piece of unworkable legislation, does not know or care much about the consequences of implementing it, demagogues the bill, demonizes the opposition, gets it passed, uses the passage for political purposes, and then waits to see what happens in the real world.

When more than 50 percent of the country is outraged, he scraps what he finds politically useful to scrap (“enforcement discretion”). Apparently, Obama believes that after such trial and error he will work the bugs out of the ACA and end up with what he can call a success — too bad for those who lose coverage or pay more in the meantime and for the legalists who worry that what he is doing is against the law.

All this is right out of the radical Athenian assembly, which on any given day could do whatever its majority wished and then the next undo whatever it wished. But such governance is not what the framers had in mind when they established the checks and balances of a republican tripartite government and entrusted the president with faithfully executing all the laws passed by congress and signed by him.



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