HHS has pretty clearly escaped the rule of law and entered a world of corporatist haggling, where political leaders and a few big industry types sit around the table and work everything out. True, they have a mutual interest in doing so–Obama needs Obamacare to work, insurers are counting on it working well enough to make them money. The interests aren’t symmetrical though—at some point, long before Obamans give up on Obamacare, insurance companies could decide to cut their losses, bail, and go make money somewhere else. That gives HHS a motive to make sure they get enough money to keep them in the game: ‘Don’t worry, we’ll make it up to you later.’ This is a policy best announced at a small table in a noisy restaurant, not in the semi-judicial proceedings required for formal rulemaking under the Administrative Procedure Act.

What’s so terrible about that? The “rule of law” is overrated. For one thing, it takes too long–too long to cope with panicked attempt to avert a first year flop of your signature legislative accomplishment. Some of the more celebrated examples of presidential leadership–JFK jawboning the steel companies, for example–were cases of government threatening oligopolies, corporatist-style, not government imposing uniform rules on a competitive market. Washington’s agencies have to use their discretion, and the attempt by lawyers to cabin, channel and regularize that discretion–by requiring formal “rules” and judicial review of them–was always kludgy and artificial. You wouldn’t want to have sex under the Administrative Procedure Act.* Maybe launching Obamacare is more like sex and less like imposing rules against pollution.