Republicans have done everything they can think of to strike down Obamacare, but they’ve still only managed to come in second place. For all the House votes to repeal, defund, or weaken Obamacare, some of the most significant setbacks for the law have come from the administration itself

[T]he law does have a specific vision of the future of health insurance. And to hit that vision, it relies on a delicate balance of popular carrots—think coverage for those with preexisting conditions—and unpopular sticks, such as the ever-controversial individual mandate. And the administration keeps chipping away at unpopular parts—sometimes directly, and sometimes by handing Republicans a political weapon.

From a policy perspective, another delay in the employer mandate is negligible. The mandate doesn’t cover very many people. But it gave another big opening to congressional Republicans, who argued—as they did the first time—that big business was getting a break while individuals were still required to buy insurance…

None of these missteps was fatal to the law, and ultimately what matters is people signing up. But Democrats’ vision for the Affordable Care Act is far more likely to happen if they keep control of the Senate this year, and the seemingly endless string of implementation setbacks is making that harder.

***

The Affordable Care Act means what it says and says what it means.

Until it doesn’t.

The arbiter is President Obama and a phalanx of health care advisers and political strategists.

Together, they try to implement what even Obama’s heartiest loyalists concede is an onerous and complicated law. They do this amid myriad Democratic midterm anxieties. And frothy Republican objections.

But it’s time to concede that no one has been more adept or aggressive about delaying and defanging Obamacare than Obama himself. Systematically and with an eye toward his party’s immediate political troubles, Obama has reshaped, photo-shopped, reimagined, and reengineered Obamacare. It all sounds techy and cool and flexible—at least to the administration. To those who must live with and live under the law, the arbitrary is the norm. The only pattern is chaos. Obamacare’s worst enemy is Obama.

***

There are good reasons that Democrats should be leery about using presidential power to achieve their ends.

Most important, the executive orders put into place by one president can be easily and quickly overturned by the next president. Killing policies that are put into place by Obama would not be extraordinarily difficult nor would it require the kind of long, protracted struggle that Republicans have engaged in with Obamacare, thus far unsuccessfully…

Presidential power also deprives a policy of the fierce public debate and congressional vote that comes with legislation. Although the process of passing bills through Congress is usually very painful for a president, if successful a policy obtains a kind of legitimacy that rarely comes from executive action. This is evident from how durable the programs from the New Deal and Great Society, such as Social Security, the Civil Rights Act, and Medicare and Medicaid have been over time…

Obama certainly would prefer to obtain legislation and the turn to executive power is a decision of last resort, one that realistically might be the only way he can achieve anything else in the next few years. But the strategy will come with some significant costs and Obama’s legacy will remain fragile and vulnerable in the coming years.

***

Thus have we been treated to an intriguing paradox: When Congress wishes to delay or amend Obamacare, it risks upsetting the entire American settlement — nullifying a law that was apparently set in aspic, never to be touched; but when Obama wishes to delay or amend Obamacare, he is merely ensuring that it works properly. Indeed, if Congress so much as hints that it would be willing to pass an alteration to the law, the administration takes it as read that it has been granted the moral permission to act on its own; but if Congress wouldn’t be willing to pass a change, then the president is forced to act in order to counter what we are reliably informed is unprecedented obstruction. It’s awfully clever.

This approach seems to have convinced the press corps, even in such cases as it is patently obvious that the government’s changes have nothing to do with the government and everything to do with politics. Almost every media outlet openly acknowledged yesterday that the newest delay was the product of electoral expedience — “in a midterm election year, the WH simply did not need any more healthcare headaches,” CBS’s Major Garrett averred, his eyebrows remaining level — and yet in not a single case did anybody ask the next question, “how is this remotely acceptable?” Certainly, I comprehend the temptation toward cynicism that the abject hypocrisy of politics can yield. I empathize, too, with those who have come to the resigned conclusion that all legal opinions are driven by partisan preference and that each and every challenge to the process by which things are achieved is ultimately a cloaked objection to the outcome at hand. As conservatives had a poor record of calling out executive overreach when George W. Bush was president, the progressive response to Obama’s accelerating domestic imperialism has thus far been to cheer and ask for more. But are we to conclude that this make it acceptable? Of course not.

***

Via Fox News.

fn

***

But why couldn’t U.S. taxpayers, who will be stuck paying for these executive actions, sue the president? “The general public, the taxpayers, are hurt in that this makes that much more unstable and that much more unaffordable a program that was already unstable and unaffordable. But there is a longstanding jurisprudential rule that one cannot establish standing merely by virtue of one’s status as a taxpayer, absent certain rare circumstances,” Lee said.

So when no one has standing to sue the president, is there anything Congress can do to stop his unconstitutional actions? “I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such way that withholds funds in areas in which the president has overreached,” Lee said. “There were many who suggested that we do precisely that, for example, with the illegal recess appointments by withholding funding for the Consumer Financial Protection Bureau–you know, when Richard Corday was illegally recess appointed. But alas, the CFPB is funded through the Federal Reserve, which is a private, for-profit corporation and isn’t funded by Congress, so that was outside of Congress’s purview.”

“In other circumstances, Congress has just declined to exercise that option of withholding funding,” Lee continued. “But it is what Congress is supposed to do. The Founding Fathers contemplated that. James Madison discussed it in Fedralist 57. And it’s perhaps the most effective, least intrusive tool for Congress to respond to executive overreach.”

***

***

Via the Daily Rushbo.