Since the indignities of the Great Depression swept Franklin Roosevelt and his crack team of social engineers into the highest offices in the land, the Left’s primary political strategy has been to pass as big an expansion of government as is feasible in their brief moments of ascendancy and then to dare the dissidents to take its fruits away when, eventually, they get back into power. As we have all learned over the last 80 years or so, progressives tend to view the welfare state in much the same way as conservatives regard the Constitution: as settled and almost holy writ, the fundamentals of which should be changed only in extraordinary circumstances. In 2012, it was this presumption that informed the popular chant that Obamacare was now “the law” and that it was in consequence to be set in aspic for all time. It is this postulation, too, that explains the crass envy that so many on the left feel for Europe, on which continent the form of sweeping statism that they covet is held to be wholly uncontroversial. And it is this conjecture that explains why FDR wished to entrench positive government action within the nation’s legal firmament, his administration’s hoping that the tenets of the New Deal would eventually be codified into a Second Bill of Rights. Why do we imagine that Obama works so hard to cast his health-care legislation not as a government program that can be altered or repealed at any time but as an immutable “right”? Because, once in, additions to the welfare system are supposed to be untouchable.
By their nature, conservative reforms tend to be easily reversible. Retrenchment can always be superseded by increased spending on newly discovered necessities. Tax cuts can easily be replaced with increases, should the scale of spending or the vicissitudes of the business cycle so demand. Crises and swells in public sentiment are, likewise, the friend of the regulators and the tinkerers, and not of the parsimonious. In our present political discourse, the very concept of “progress” is conflated as a matter of routine with the growth of the state — that word’s being trotted out as a question-begging, catch-all justification for whichever imperatives were agreed upon yesterday at Harvard. The result, as President Reagan quipped, is that “government programs, once launched, never disappear,” their enabling departments representing “the nearest thing to eternal life we’ll ever see on this earth.” Those who are wondering why a man who ran promising to use executive power modestly is now channeling Julius Caesar should recognize this simple truth, for it will lead them eventually to their unlovely answer. Put bluntly, Barack Obama understands that, long-term, his usurpations are worth the cost to him and his party. Why did the president keep delaying Obamacare, despite his having no legal authority to do so? Because, by sheltering the law from the wrath of the electorate and ensuring that it could be entrenched within American life before anybody noticed that it had been sold under false pretenses, he could turn the conversation away from his own failures and toward the iniquity of those who would have repealed it before it was too late.
This approach has informed his tenure. The sequence: Get the thing in; take whatever losses are necessary; shelter it from harm, legally or not; and then reap the benefits in the long-term. The strategy is an effective one. Michael Cannon and Jonathan Adler may well be correct when they contend that Obamacare-as-written does not permit the IRS to send subsidies through federal health-care exchanges. And, next year, they may even persuade the Supreme Court to rule in favor of their claim. If they do, we will watch the highest court in the land confirm that the IRS and the White House have acted ultra vires once again. But, ultimately, who cares? Having sent money out to millions of people, the president will now be able to paint his opponents as cruel and selfish ideologues who hope to take health care away from the poor. For the sake of argument, we might suppose for a moment that Obama knew full well what he was doing — that is, that he understood that subsidies were not to be given out in this manner but that he did it anyhow. Given his broader aims, couldn’t we regard this as a smart calculation? As any naughty child knows, it is far easier to apologize than to ask for permission.
This ruse seems all the more profitable once one has recognized that President Obama is likely to be untroubled by the possibility that a Republican could eventually use the same tools against the Democratic party and its interests. Fun as it may be for frustrated Republicans to contemplate the prospect of a President Ted Cruz refusing to enforce high tax rates or to prosecute those who violate the National Labor Relations Act or to stop sending out welfare checks, these initiatives would be significantly politically different than have been Obama’s. Before conservatives can make changes, they must persuade enough people that the obvious benefits of a given policy are being outweighed by the distributed and inconspicuous drawbacks. Moreover, the obvious beneficiaries of their thriftiness tend to be less self-evidently sympathetic than do the Left’s. Few people’s heartstrings, I’d venture, are pulled by the thought of reforms to the corporate tax rate; by the deregulation of industry; by the restructuring of unsustainable pension plans; or by changes to the manner in which public-sector unions are funded. By contrast, ten minutes after the passage of their latest grand scheme, progressives are afforded the delicious opportunity to accuse the naysayers of wishing to “take away” goodies from the people. Consider just how quickly conservatives were told that by continuing to oppose Obamacare they were hoping to drag the country all the way back to the dark, apocalyptic days of 2009. Note how comfortable the pro-Obamacare journalistic class has become in telling its critics that they “want to kill people.” Observe the ease with which our friends on the left take for granted that government is the only legitimate means by which moral action may be channeled and that its detractors must therefore be cads and bounders.
Which brings us, eventually, to the thorny question of Obama’s impending immigration edict. Even if we presume that one can squint enough to construct a technically correct legal case in its favor, the order that the president will announce on Friday will nevertheless represent an unprecedented and extraordinarily dangerous abandonment of political and constitutional norms, and a long-term threat to the integrity of our separation of powers. The president is not here acting in furtherance of Congressional legislation; nor is he tidying up the edges of rules that have been laid out in law. Rather, he is abusing his discretion to effect a policy change with which Congress has explicitly refused to acquiesce. As the president has made clear himself, here he is acting in loco legislationis, hoping as he moves his pen across the page that the usurpation will provoke recalcitrant lawmakers into action of which he approves. Once, he characterized such behavior as being better suited to an “emperor,” a “king,” or a “dictator.” Now, he blithely sells his plan as if it were the most natural thing in the world. All in all, he is playing an exquisite game of motte and bailey. When challenged on the legality of his behavior, the president’s defenders point to technicalities and to the limited discretion that he has been afforded by law. When selling his action politically, however, he is a hero who is ushering in a momentous change. He will likely spend the rest of his presidency shuttling between these two positions.
All told, one cannot entirely blame him, for he knows full well that any reforms will be almost impossible for a future legislature or a future president to undo. What rational political outfit, one has to ask, is likely to spend the next few years irritating the direct and indirect beneficiaries of this change? Is a Republican in 2016 going to risk being endlessly demagogued as “anti-Hispanic” in order that he can make a process point about which most voters do not seem much to care? Will the Right writ large risk the teary 60 Minutes interviews featuring illegal immigrants who had been spared deportation but are now once again in fear? I highly doubt it. Such inquiries, moreover, presume that conservatives would in fact wish to reverse those policies in the first instance — a supposition that is by no means beyond doubt. Obama understands these things, and he knows that, even if he is slapped down for having overreached, the important thing is that he gets his own way. If, as he seems to believe it to be, the president’s choice is between constitutional propriety and Hispanic voters’ long-term devotion to this party, he has an easy answer does he not?
It is customary to hear advocates on the left point to these political realities and propose that they serve as proof that the proposed action is therefore moral. “If nobody will undo it,” this view holds, “then isn’t it by definition both democratic and good”? This, I’m afraid, is a grave and myopic mistake. The great virtue of the rule of law is that it separates means and ends, thereby preventing individuals from appealing only to the outcome of a given action and ignoring entirely how it was achieved. In the United States, it is simply not enough for a reformer to cry “it was a nice thing to do”; he also has to demonstrate that what he did was both legal and that it was in keeping with the essential tenets of ordered liberty. That way, the people can reasonably expect to predict what the state will do at any given point, and are accorded a certain recourse if it declines to follow the rules. Whatever progressives might think, “good” and “kind” and “necessary” are not self-evident, but sit firmly in the eye of the beholder. Ensuring that we have broad agreement as to which actions comport with those values and which do not is why we have a system in the first instance. We do not judge virtue on the basis of what the ostensibly virtuous can get away with.
By electing to go ahead with his action, Obama is willfully breaking this link — hoping, as he does so, that he can win the argument over the issue and that this will eventually obfuscate the contretemps over the procedure. That he is choosing this course is seriously problematic, and it should alarm even those who agree with the president on this question. But it is also smart. Keenly aware that his conscience is the only material barrier between our established political norms and his faction getting what it thinks it wants, the president has decided to roll the dice. The move is ugly as hell, and, in the long term, it will prove to be constitutionally cancerous. But cheating helps to move the ratchet, and for some that’s all that really matters.
— Charles C. W. Cooke is a staff writer at National Review.