LM OTERO/AP PHOTO
A Democratic Congress and president pushed through Obamacare, a law unpopular with the majority of Americans.
Barack Obama’s supporters and detractors don’t agree on much, but as the president enters his final two years in office, they have voiced a common complaint: the president lacks competence. They cite multiple management breakdowns, such as the disastrous rollout of the Obamacare health-insurance website, which have eroded public support; his lack of engagement with Congress, which has impeded his legislative agenda; and his chronic inability to address serious problems before they become full-blown crises, undermining Americans’ confidence in his leadership.
There is no doubt considerable truth to these charges. But Obama’s fundamental problems stem less from incompetence than from his philosophy of governance. In his first presidential campaign, Obama took pains to distinguish his approach from the incrementalism of Bill Clinton and modeled himself instead on the transformational leadership of Franklin Roosevelt and of Ronald Reagan. During the race, and increasingly after the election, it became clear that Obama embraced a theory of dramatic political change—that of progressivism, which dates its American origins to an early-twentieth-century era of social and political reform. And he has adhered to it, despite some of the worst midterm election defeats faced by any two-term president.
Progressivism’s vision of the role of the state conflicts with the system of government envisioned by America’s Founders. The Founders wanted citizens to be free to pursue their affairs individually and in voluntary association; the powers of the federal state were to be tightly constrained. In contrast, the greatest political theorist of American progressivism, Herbert Croly, said that the nation’s “democracy should be focused on an equal sharing of wealth and responsibilities”—an enterprise that demands a larger and more intrusive federal state to enforce. Obama spoke from this tradition on the campaign trail in 2008—most famously, when he told Joe the Plumber that it was “good to spread the wealth around.”
But Obama and his supporters face a more challenging political landscape than did their progressive forebears. In the early twentieth century, progressives introduced new entitlements against the backdrop of low federal spending and a much smaller federal government. At the beginning of the Progressive Era, federal government spending represented only about 4 percent of GDP; it reached 11 percent when FDR introduced Social Security. (Even that figure was artificially high because the Depression had dramatically reduced GDP.) And progressivism in its early years enjoyed support among the legions of poor, who had little to lose from the rearrangement of rights by government programs.
Today, the federal government spends more than five times as much, as a percentage of GDP, than it did at the beginning of the last century, and twice as much as when Social Security was introduced. That amount will continue to grow, driven by the rising cost of entitlements for an aging population. The future consequences of past decisions thus constrain the present capacity of the state, even as progressivism’s reach becomes more ambitious: reorganizing health care, as the Obama administration has begun to do with the 2010 passage of the Affordable Care Act, better known as Obamacare, touches everyone’s life in ways that, say, the regulation of railroads did not. Such massive programs are more likely to be complex and to generate popular resistance, as Obamacare has done.
On top of these structural difficulties, the progressive coalition has also become harder to maintain. Over the course of the twentieth century, free-market capitalism created unprecedented mass affluence. The average income of Americans grew by more than four times in the last century, making the United States the wealthiest nation of any substantial size. Citizens now have more to lose from interventions in the free market, because they are better off. It’s hard to imagine that a progressive party could maintain control of both the House and Senate for 20 consecutive years and the House for 40 years, as did the Democrats earlier in the twentieth century.
Faced with these constraints, today’s progressives must resort to more misleading and sometimes coercive measures, as they seek to bring about equality through collective responsibility; they must rally support by looking beyond economics, to cultural and social identifications, in a bid to maintain the support of voters with little need for government intervention. They also want to limit the voices of citizens at election time, and thereby magnify the influence of the press and academia, which lean sharply in the progressive direction.
Nothing shows the progressive dependence on subterfuge more starkly than Obamacare, which, by imposing a personal mandate to buy insurance in an effort to bring health care to all, will restructure one-sixth of the American economy. Single-payer government health insurance has been a dream on the left for decades, but it was never a politically realistic option. This was true even while Democrats controlled both houses of Congress, as they did during the first two years of Obama’s first term. The American public wouldn’t tolerate the level of government funding that a single-payer system would require, so the best that the administration could do was to impose a regulatory structure, while accepting a private-insurance model. In crafting the Affordable Care Act, the administration intentionally avoided describing the individual mandate as a tax—a tacit admission that doing so could have sunk the bill. After the bill became law, however, the administration turned around and argued before the Supreme Court that the mandate , in fact, a tax. The Court upheld the mandate as an exercise of an enumerated government power to levy taxes. Even then, the administration concealed Obamacare’s taxes on the wealthy, which were not added to the income-tax tables. The recently publicized comments of MIT professor Jonathan Gruber about the deception involved in promoting the Affordable Care Act demonstrate that such chicanery has become intrinsic to modern progressivism.
American affluence also proved a political obstacle for the law’s drafters. Most Americans already had health insurance and a doctor with whom they felt comfortable. To secure support for the ACA, therefore, Obama had to promise repeatedly that those happy with their current health plans (and doctors) could keep them. But ACA requirements resulted in the cancellation of many insurance plans, causing patients to lose access to their doctors. This proved the most damaging blow to Obama’s credibility.
Some have labeled the president’s economy with the truth a personal failing, but it’s more like a professional necessity. Modern progressivism’s business model requires obscuring the reality that new programs have winners and losers—and the losers are spread throughout the general population, not confined to members of the so-called 1 percent. As the Affordable Care Act goes fully into effect, the losers will become more visible. If people had known the truth about Obamacare in 2010, the bill would almost certainly have been defeated. If they had known it in 2012, Obama would likely have lost his reelection bid.
The architects of Obamacare needed these deceptions, in part, because more people are becoming aware of the financial burden of unfunded liabilities. As a result, it is not as easy to slough off costs on future generations. Obamacare’s ill-fated CLASS (Community Living Assistance Services and Supports) provision, a long-term-care insurance program for the elderly, is a case in point. A voluntary program, CLASS was required by law to be financially self-sustaining, meaning that it would need large numbers of young and healthy people to sign up for it—a dubious prospect. The revenues expected in CLASS’s first years made Obamacare seem more fiscally responsible in the short term than it really was, though the Medicare actuary warned that this was a mirage. “Thirty-six years of actuarial experience,” he wrote in an internal e-mail, “lead me to believe that this program would collapse in short order and require significant federal subsidies to continue.” Less than two years later, HHS secretary Kathleen Sebelius concluded that the program could not be self-sustaining and terminated it.
Even before Obamacare’s false promises were revealed, the law was not popular with middle-class voters, who felt that Obama was less interested in restarting the stagnant economy than in creating a new welfare program. Riding a wave of dissatisfaction with the new law, Republicans took control of the House of Representatives in 2010. Four years later, with the ACA even more disliked, the Republicans took the Senate, too. Since Obamacare never had bipartisan support, the Democrats would have been hard-pressed to pass amendments to improve it under the best circumstances; their legislative losses made the question academic. This difficulty underscores a key problem with central planning: the world is unpredictable. Just as no military plan survives contact with the enemy, no program of government benefits, and certainly not one as ambitious as Obamacare, can anticipate the changing circumstances in which it will operate.
Struggling with problems of implementation and public resistance, the administration has held off enforcing inconvenient parts of the law, such as the one requiring businesses to offer health-care insurance to their employees by 2013. That provision was delayed by one year. The law also required uninsured individuals to purchase health plans, but the administration exempted those who would “face hardship.” Since following the law’s required timeline would have had adverse political consequences, the administration claimed the authority to delay and amend these provisions. But the law’s statutory deadlines were clear.
The Supreme Court will soon determine the legality of yet another Obama administrative action that appears to contradict the plain language of the Affordable Care Act. The statute provides taxpayer subsidies for insurance policies bought on “exchanges established by the states.” But almost half the states have declined to establish such exchanges. When states don’t set up exchanges, the ACA then requires the federal government to do so but provides no parallel authorization for subsidies. Nevertheless, the Treasury Department has adopted regulations offering such subsidies, arguing that they advance the overall purpose of the ACA. Authorizing subsidies for federal exchanges is vital to the future of Obamacare, particularly because sign-up numbers have been disappointing. Should the Supreme Court rule that the administration lacks this authority, though, any attempt to provide authority through legislation will lead to wholesale revision of Obamacare in the Republican Congress.
Progressivism has long valued executive discretion in domestic affairs because presidents need to make fewer compromises than do legislatures. Not surprisingly, Obama-era progressives argue for maximizing the scope of that discretion. The Democratic Senate’s decision to do away with the filibuster on judicial nominations, for instance, was principally designed to eliminate any roadblocks to confirming Obama’s nominees to the District of Columbia Circuit. That court oversees the exercise of administrative discretion in many important government programs—including Obamacare.
But today’s progressivism needs more than wide-ranging discretion to adapt its laws to new circumstances when its coalition no longer controls Congress. The examples above suggest that President Obama is exercising unilateral power to decline to enforce laws or even to rewrite them. Such power exceeds the traditional norms of prosecutorial discretion. Indeed, it comes perilously close to the “dispensing power” of the Stuart monarchs, who claimed the authority to disregard laws. The British rejected that power during the Glorious Revolution, and the Founders rejected it, too, by inserting language into the American Constitution requiring that the president “take Care that the law be faithfully executed.”
Progressives also want to transform the rights provisions of the Constitution to improve their chances of political success. The president was so concerned about the Supreme Court’s protection of free speech in political campaigns that he attacked its campaign-finance decision, which abolished restrictions on independent political expenditures by nonprofit groups. In a State of the Union address, Obama claimed that the ruling “reversed a century of law to open the floodgates for special interests—including foreign companies—to spend without limitation.” Obama’s comment about foreign corporations was no truer than his claims about the Affordable Care Act. It was instead an attempt to use xenophobia in support of the suppression of political speech. And the principal beneficiaries of , in fact, aren’t for-profit corporations, which don’t want to offend their consumers by taking political positions, but nonprofit corporations that allow citizens to band together to deliver political messages for various causes.
The freedom of citizens to pay for political messages poses a threat to progressives because it endangers the control over political and social discourse that the Left otherwise enjoys. The media lean overwhelmingly Democratic, with some studies estimating the imbalance between Democrats and Republicans at more than four to one. Academia is even more lopsidedly left-wing. In the Ivy League, which remains the most powerful educational megaphone for social ideas, Obama attracted 20 times as many contributors as Mitt Romney. This ideological imbalance provides progressivism with one of its most powerful weapons. And here the attack on becomes especially practical: restricting independent campaign expenditures will allow the press and the academic world to control the agenda, as they already do for periods between elections.
It’s worth noting in this light that the single constitutional amendment that Obama has endorsed in office is one overruling . Last year, Senate Democrats brought to the floor an even broader amendment that would have permitted Congress to regulate both campaign expenditures and contributions. The amendment would have exempted the press from regulation, suggesting that the political objective is indeed agenda control.
Obama’s exercise of executive discretion extends further still. Most recently, in a move decried by conservative constitutionalists, he signed an executive order deferring the deportation of some 4 million illegal immigrants, allowing them to work legally in the United States. While his stroke of the pen cannot grant citizenship, it can create a new political reality, making it harder to resist the main political prize for progressives: guaranteeing a path to voting citizenship. These and other moves represent an attempt to create a new political order in which progressivism is more likely to thrive.
This goal also explains why the new progressivism must enlarge its agenda to include social issues, engaging in the wars of culture as well as class. While the old progressivism focused almost exclusively on economics, the new progressivism seeks a panoply of new entitlements, from on-demand contraception to same-sex marriage. Today’s progressive enthusiasm for creating new constitutional rights out of the latest social cause expands progressivism’s appeal to more affluent, secular voters, for whom bending the arc of history gives meaning to life. To succeed, then, modern progressivism must reconstitute the nature of politics, not merely change the content of policies.
In response to the progressive agenda, conservatives and libertarians must also focus on the structure of politics. Where the new progressivism would burst the bounds of law to pursue its goals, today’s conservatives must strengthen the rule of law. For instance, the response to modern progressivism’s desire for a dispensing power should be statutory requirements that expressly forbid the president from modifying laws with which he disagrees, together with statutes that widen the ability of citizens to challenge such executive illegality. Moreover, the new Republican Congress should enact amendments to the Administrative Procedure Act that require congressional approval for major exercises of executive discretion. The Right became more enamored of executive discretion when Republicans seemed to have a lock on the presidency. But for reasons of both principle and tactical necessity, conservatives should re-embrace a notion of limited government based in congressional, not presidential, power.
Countering the progressive drive to reduce the speech rights of those outside the symbolic class, conservatives should emphasize the principle of equality before the law. No class should be given particular privileges to speak about politics. The answer to complaints about the undue influence of campaign money at election time can be found in the principle of neutrality. Congress should commit itself to operate by evenhanded rules of appropriate generality and thus ban earmarks, targeted regulatory relief, and other favors often used to reward political support.
Devotion to the rule of law can also contain corrosive culture wars. By decentralizing decision making and diffusing debate in this context, federalism lowers the temperature of national politics and allows the national government to focus on defense and other issues to which it is uniquely suited. And decreasing the payoff to victory in the culture wars lessens progressives’ motivation to use social appeals to rally a coalition that might otherwise fracture.
From its inception, progressivism has posed a threat to constitutional government. It has sought to replace limited and decentralized governance with dynamic, centralized authority in order to force some arrangement of equality on the nation. Because the world has a way of upsetting abstract designs, progressivism depends on empowering administrators to impose its frameworks while disempowering citizens from resisting these coercions. The Obama administration’s push for unilateral presidential authority to disregard the law is thus the logical extension of the progressive program. Opposition to this program requires nothing less than a rededication to our Founding ideals: our nation must be governed by the rule of law, not the rule of an elected monarch or of a legally privileged aristocracy.
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