The ignorant presidency

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Is it the imperial presidency, the impudent presidency, or just the ignorant presidency? For some time I have thought it was the first, with a dose of the second. I figured President Obama for a man who thinks so well of himself and his notion of how the world should be that he believes he must do whatever it takes to transform his vision for America into reality.

But with his latest desperate effort to stem the political disaster that is Obamacare, I have to wonder if it isn’t just plain stupidity. How can any Harvard trained lawyer who taught constitutional law at the University of Chicago believe that the president of the United States has the authority to suspend enforcement of an act duly passed by Congress and signed by the president? How can he and those who advise him believe that this blatantly illegal action will survive the inevitable constitutional challenges that will soon fill the courts?

Perhaps they know the legal folly of this executive usurpation of legislative power but are so clever as to expect that the glacial speed of the judiciary will carry them past the 2014 elections. After that the anticipated constituency of subsidized health care recipients will have emerged and will carry the day in 2016 and beyond.

Of course so clever a strategy assumes their abuses of power can stem the tide of unhappiness and worry that is spreading across the land. But as the Wall Street Journal asks, how do you un-cancel an insurance policy? How do you get insurance companies to restore millions of cancelled policies when their entire business model going forward is based on those cancellations? Did anyone among the geniuses in the White House wonder how they would make the president’s latest decree work, even if they are consciously indifferent to its unconstitutionality?

So it has to be ignorance as much as impudence and imperiousness. The entire Obamacare experience, from its partisan cram-down enactment to the administration’s refusal to reopen the law to tweak its flaws, to its disastrous rollout, speaks of mindboggling stupidity. Political smarts mean that you gain at least a modicum of bipartisan support for a transformation of 1/6 of the U.S. economy. Management smarts mean that you hire people who know what they are doing to construct your website. And just plain common sense advises that there is no stopping a train wreck once the train has gone over the cliff.

The president and his hapless spokesman Jay Carney will insist that the president does have legal authority to suspend the rules disqualifying so-called “substandard” policies, just as he suspended the rules relating to business compliance with the mandate. Their theory is prosecutorial discretion. Prosecutors must get a good laugh from that one.

Prosecutorial discretion is about exercising judgment about how to spend limited resources in enforcing the many laws enacted by legislators. It is not about suspending duly enacted laws. It is one thing to optimize prosecutorial effectiveness by picking and choosing among those against whom laws are enforced. It is an entirely different matter to announce that a particular law will be enforced against no one.

The Obama presidency is starting to look like amateur hour at a three ring circus. The airialists are falling from their trapezes. The lions are eating the lion tamer. And the clowns are stuck in their tiny cars.

But this is worse than the embarrassment of a really bad visit to the big top. This is the White House and President Obama is the most powerful man in the world. When combined with another circus at the other end of Pennsylvania Avenue, this all looks pretty grim.

The combination of imperial self-confidence, intransigence and ignorance is lethal. At this point it seems our only hope is to look to the states and the private sector. But they have a floundering federal leviathan to overcome. Perhaps the silver lining of Obamacare will be a recognition among voters that one reason for limited government is that government has inherent limits, more so when ambition and incompetence converge.