“[W]e expect he would work with Congress, as the Founders intended.” Scholars and Writers for America, Statement for Candidate Trump “We don’t have a lot of closers in politics and I understand why. It’s a very rough system. It’s an archaic system. You look at the rules of the Senate, even the rules of the House—but the rules of the Senate and some of the things you have to go through, it’s—it’s really a bad thing for the country, in my opinion. They’re archaic rules and maybe at some point we’re going to have to take those rules on because for the…
It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
Mike Lee knows a thing or two about the Constitution. Utah’s junior senator is the son of Rex E. Lee, the founding dean of the law school at Brigham Young University and Ronald Reagan’s first solicitor general. Lee recounts attending his father’s oral arguments at the U.S. Supreme Court, which he characterizes as a somewhat more decorous version of dinner table conversations in the Lee household. The younger Lee went on to graduate from the law school his father helped found, to clerk for Justice Samuel Alito when the latter was on the U.S. Court of Appeals for the Third Circuit (later joining Alito again as a clerk at the U.S. Supreme Court), and to specialize in federal appellate court litigation at an elite law firm.
Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.
But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:
It has been widely remarked that President Obama and his administration are making a habit of failing to enforce the law when legal obedience would be politically inconvenient. Most importantly it has suspended or delayed various provisions of the Affordable Care Act. My focus here is on how such behavior follows from the inner logic of progressivism as a political philosophy and a governing coalition.
Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. But the problem with central planning is that life, including political life, is unpredictable. Just as no military plan survives contact with the enemy, no positive program of government social construction and certainly not one as ambitious as Obamacare can anticipate all the secondary and tertiary effects that come in its wake. It could not do so, even if the program were wholly coherent at its inception, which limitations of knowledge and politics make impossible.
Thus, there will be an inevitable need for ad hoc changes. And yet the Progressive coalition is always unstable, being made up in large part of people who want things from the government that conflict. Thus, the coalition that passed the law will not remain unified. Indeed, it may lose its congressional majority. Hence, as Obama has found, it has become impossible to adapt the program to new circumstances through the democratic means. Unilateral power of legal suspension is the logical outcome so long as the President is a Progressive and his coalition has frayed.
A recent letter from Congressman Henry Waxman, demanding that a pharmaceutical company justify its pricing of Solvadi, a new drug to cure Hepatitis C, precipitated a selloff in biotech stocks. Waxman’s concern about Solvadi’s price does not appear well-founded when one compares Solvadi to the alternatives. While more expensive per dose than the previous treatments, Solvadi is more effective and requires a shorter course, marking it as a substantial advance for curing this serious illness.
The Congressman’s intervention raises larger questions about the relation of government policy to innovation. Anyone who is getting older—and that is all of us—should see medical innovation as one of the most important measures, if not the most important measure, of a successful health policy. As Eric Topol details in his fine book, The Creative Destruction of Medicine, technological acceleration, including advances in genomics and stem cell research, suggests that we are on the cusp of a golden age of medical innovation. But government-imposed price controls and other policies can reduce the incentives for devising new treatments, resulting in preventable death and illness.
Sadly, our health care debate does not sufficiently focus on innovation. Indeed, the very name of the so-called Affordable Care Act emphasizes the current cost of health care, not its benefits, and certainly not future benefits from innovation. Supporters of the Act have focused on holding down health care costs and limiting their growth.
This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.
This business of administrative fixes to duly enacted statutes, like the one President Obama announced to the Affordable Care Act Thursday, may or may not produce improved policy, but it is certainly horrendous constitutionalism, and those who utilize it today are fated to howl about it tomorrow. It is a good rule of constitutional thumb never to create a power one would not trust when placed in the hands of one with whom one disagrees. Democrats ought thus to ask: Will it be fair game for future Republican presidents unilaterally to alter statutes, much in the manner of a surgeon excising tumors or bypassing arteries, merely because the old-fashioned route is inconvenient? (Suppose Congress raises the minimum wage; a Republican president, opposing the policy, exempts businesses from it by means of prosecutorial discretion: “Administrative fix”!)
It has happened under the Affordable Care Act twice now, once to delay the employer mandate and now to inhibit the cancellations of insurance policies. In each case, the legal basis has been prosecutorial discretion, the president’s alleged authority to decide when and whether to enforce a law. (What was that about “faithfully execute?”) Both actions seem reasonable enough on policy grounds. Both also make the Bush-era signing statements seem like models of constitutional deference by comparison. Signing statements, for all the abusive purposes to which they are put, are at least keyed to constitutional objections. Administrative fixes circumvent Congress because going through Congress is a pain in the neck.
The Brookings Institution’s Elaine C. Kamarck and Sheila P. Burke have published a research paper on the implementation of the Affordable Care Act. It’s classic Brookings: judicious, competent, useful. The piece contains an overview of which states are where in terms of expanding Medicaid and establishing health care exchanges. As a rule, Republican-led states are nowhere.