In an important sense, the American people have no political say in the health-care law, for example, because Congress did not pass a law reforming the health-care system; instead, Congress passed a law empowering the Obama administration, through its political appointees and unelected time-servers, to create a new national health-care regime. The general outline of the program is there in the law, but the nuts and bolts of the thing will be created on the fly by President Obama and his many panels of experts. There are several problems with that model of business, one of which is that President Obama, and more than a few of his beloved experts, have political interests. The partisans of pragmatism present themselves as disinterested servants of the public weal, simply collecting the best information and the best advice from the top experts and putting that into practice. Their only political interest, they would have us believe, is in helping the public understand what a great job is being done for them. Consider President Obama’s observation that his worst mistake in his first term was “thinking that this job was just about getting the policy right. . . . The nature of this office is also to tell a story to the American people that gives them a sense of unity and purpose and optimism, especially during tough times.” (It never seems to have entered into the president’s head that he might have got the policy wrong.) But of course there is a good deal more to politics than that. For example, the president would very much like the unemployment problem to be somewhat abated by the time of the 2014 congressional elections, but he knows that this is unlikely to happen with employers struggling under an expensive health-care mandate that he has not told enough of a story about. And so he has decided — empowered to do so by precisely nothing — that the law will not be enforced until after the elections. Neither does the law empower him arbitrarily to exempt millions of his donors and allies in organized labor from the law, but he has done that too.
This is a remarkable thing. The health-care law gives the executive all sorts of powers to promulgate regulations and make judgments, but it does not give the executive the power to decide which aspects of the law will be enforced and which will not, or to establish a different timeline from the one found in the law itself. For all of the power that Congress legally has given the president in this matter, he feels it necessary to take more — illegally.